Kirchner v. Grover
| Citation | 121 S.W.2d 796,343 Mo. 448 |
| Decision Date | 19 November 1938 |
| Docket Number | 35228 |
| Parties | Henry C. Kirchner, Trustee of the St. Louis County Automobile Company, Bankrupt, Appellant, v. Anna A. Grover: Anna A. Grover, Administratrix of the Estate of Harry V. S. Grover, and Katherine Stauss |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis.
Reversed and remanded.
Barker Durham & Drury and Geo. O. Durham for appellant.
(1) The fact that plaintiff declined to plead further when the third petition was held totally insufficient did not convert the dismissal into a voluntary dismissal. The requirements of the statute are mandatory and the court deprived himself of jurisdiction to entertain another petition when he sustained the motion to strike. R. S. 1929, sec. 796; Beardslee v Morgner, 73 Mo. 22; Gordon v. Burris, 125 Mo 39; Johnson v. Ry. Co., 227 Mo. 431; Evert v. Glenn, 35 S.W.2d 652. The order to make the second amended petition more definite and certain did not count under Section 796, as one of the three petitions held fatally defective. Voorhees v. Exposition Co., 243 Mo. 418; Tool Co. v. Spring Co., 122 Mo.App. 603. The appeal is on the record proper and will be examined without a bill of exceptions. St. Louis v. Senter Comm. Co., 102 S.W.2d 103; Pickel v. Pickel, 176 Mo.App. 673. The facts stated in the petition determines the character and right of action asserted. R. S. 1929, secs. 696, 764. The prayer is not a material part of the petition. It may be disregarded and any appropriate relief granted. Caldwell v. Eubanks, 30 S.W.2d 976; Barnett v. Ground, 304 Mo. 592; State ex rel. Major v. Ry. Co., 240 Mo. 35; Knight v. Ry. Co., 120 Mo.App. 311; Wollums v. Mut. Ben. Assn., 226 Mo.App. 647. It is proper to charge both joint and several liability in a single petition and proof of either is sufficient. Fellows v. Jernigan, 68 Mo. 434. The two petitions are identical in substance, even when tested by the harsh rule that "the same evidence must support both petitions." Liese v. Meyer, 143 Mo. 547; Arrowood v. Delaney's Est., 295 S.W. 522. The true test of departure is whether or not the "gist" or "general identity" of the actions are the same, and would a judgment on one bar a judgment on the other. State ex rel. v. Cox, 19 S.W.2d 695; Oakley v. Richards, 275 Mo. 266; Walker v. Wabash Ry., 193 Mo. 453; Stewart v. Van Horn, 91 Mo.App. 647; Ingwerson v. Ry. Co., 150 Mo.App. 374, 130 S.W. 411; Hudson v. Ry. Co., 173 Mo.App. 611; State ex rel. v. Bourne, 151 Mo.App. 104; Smith v. Harbison-Walker Refractories Co., 100 S.W.2d 909; Jensen v. Hinderks, 92 S.W.2d 108; Coleman v. Land Co., 105 Mo.App. 254. Dropping two defendants did not change the cause of action. R. S. 1929, secs. 2956, 2953; David v. Ritchey, 85 Mo. 501. (2) The third amended petition states a good cause of action in equity. The trustee is not only the representative of the bankrupt he is vested by law and the adjudication -- "with all the rights, remedies and powers of a judgment creditor holding an execution duly returned unsatisfied." Act of June 25, 1910, 36 U.S. Statutes 840, 11 U.S.C. A. 75, 11 U.S.C. A. 110. Trustee is not limited to remedies, and rights of bankrupt; he has also the status of a judgment creditor. In re Hammond, 188 F. 1020; Dean v. Shingle, 198 Cal. 652, 46 A. L. R. 1196; In re Duker Meat Market, 2 F.2d 699.
G. A. Wurdeman and E. McD. Stevens for respondents.
(1) The third amended petition was a departure from the original petition filed. Pleadings may not be amended so as to substantially change the cause of action or defense, nor can there be a substitution of a different cause of action from the one originally stated. There are five tests: (a) Whether the subject matter in dispute is different. (b) Whether different evidence would be required. (c) Whether the measure of damages would be different. (d) Whether recovery under one petition would be a bar under the other. (e) Whether the same defense would apply to both petitions. Arrowood v. Delaney's Estate, 295 S.W. 522; Leise v. Meyer, 143 Mo. 555; Jacobs v. Ry. Co., 204 S.W. 954; Stanton v. Edman, 28 S.W.2d 426; Scovill v. Glasner, 79 Mo. 449; Ross v. Land Co., 162 Mo. 317; Purdy v. Pfaff, 104 Mo.App. 339; Lumpkin v. Collier, 69 Mo. 170; Tobin v. McCann, 17 Mo.App. 481; Meyer v. Glick, 221 Mo.App. 1046. (2) A motion to strike the pleading is the proper mode of raising the question of departure. Beattie v. Gerardi, 166 Mo. 142; Sims v. Fuld, 24 Mo.App. 557. (3) Both petitions are demurrable because they are multifarious and there is a misjoinder of parties defendant. Strong v. Crancer, 76 S.W.2d 383; Liney v. Martin, 29 Mo. 31; Beattie Mfg. Co. v. Gerardi, 166 Mo. 156; McGlothlen v. Hemery, 44 Mo. 350; Doan v. Holly, 26 Mo. 186; Johnson v. Brill, 295 S.W. 562; Montserrat Coal Co. v. Johnson County Coal & Mining Co., 141 Mo. 149; Stalceys v. Garner, 26 Mo. 72; Mullen v. Hewitt, 103 Mo. 639; Clark v. Covenant Mut. Life Ins. Co., 52 Mo. 272.
Action by the trustee in bankruptcy of the St. Louis County Automobile Company to recover the amount due on subscriptions for stock in said company. The court struck out the third amended petition for departure and entered judgment dismissing the suit, as provided in Section 796, Revised Statutes 1929. Plaintiff appealed.
The automobile company conducted business in the city of Clayton, St. Louis County, until July 7, 1930. At that time, and on application of the company, it was adjudicated a bankrupt by the district court of the United States. The claims against the company are about $ 120,000. The assets are about $ 20,000.
In substance the original petition alleged facts as follows: On February 24, 1915, the St. Louis County Automobile Company was incorporated under the laws of Missouri with an authorized capital of $ 5000, divided into fifty shares. The articles of association and certificate of incorporation were filed in the office of the recorder of deeds of St. Louis County on March 15, 1915. The subscribers for the stock were Harry V. S. Grover, two shares; Katherine Stauss, forty-five shares, and Geo. J. Bopp, three shares. The articles of association recited that the capital had been paid to the directors in money or its equivalent. Whereas, the directors received only secondhand automobiles of less value than $ 5000 in payment for the stock.
Furthermore, on August 6, 1919, an increase of the capital from $ 5,000 to $ 25,000 was authorized by the stockholders. Anna A. Grover subscribed for the two hundred shares representing the $ 20,000 increase in the capital, for which she is obligated to pay the company. On September 6, 1919, the statement of the company with reference to said increase was recorded in the office of the recorder of deeds at Clayton and was certified to and filed with the Secretary of State. It recited that the $ 20,000 had been paid to the directors of the company, which statement was verified by the affidavits of Anna A. Grover, Harry V. S. Grover and Katherine Stauss. Anna A. Grover did not pay the $ 20,000, and the company has never been paid for the stock.
Furthermore, on April 15, 1926, the stockholders increased the capital of the company form $ 25,000 to $ 100,000. The statement with reference to said increase, which statement was verified by affidavit of Harry V. S. Grover, was filed in the office of the recorder of deeds at Clayton on April 24, 1926. It recited that $ 84,000 of the capital was in the possession of the directors of the company. It also recited that Harry V. S. Grover, L. J. Berkley and Anna A. Grover were the only stockholders of the company. It did not disclose the respective interests of the stockholders. Although the several articles of agreement, resolutions and statements recited that there had been full payment of the capital, as a matter of fact no cash or other property of the declared value was paid or transferred to the company for said stock.
Furthermore, the declarations of said articles of association and the statements with reference to the increase of the capital stock were false and made for the purpose of obtaining credit. Furthermore, the bankrupt estate is hopelessly insolvent and that there is no means of payment of the claims against the estate except by an assessment against the owners of the unpaid capital stock.
In substance the original petition then alleged that the several defendants are liable to plaintiff for the unpaid subscriptions for stock; that plaintiff has no adequate remedy at law to enforce said liability, and therefore brings this suit in equity. Wherefore, he prays that the court determine the liability of the several defendants and enter judgment according to their respective holdings of stock in the company; that if a defendant cannot be compelled to pay his or her proportion of the indebtedness against the bankrupt estate, that the other defendants be compelled to pay the same according to their respective holdings, and for such other relief as may be proper and equitable in the premises.
Defendants contend that the plaintiff had an adequate remedy at law against each defendant to recover the amount due on unpaid stock subscriptions, citing Strong v. Crancer, 335 Mo. 1209, 76 S.W.2d 383.
In that case the petition alleged a definite and certain amount due from each stockholder on unpaid subscriptions. For that reason we ruled that plaintiff had an adequate remedy at law against the individual stockholders. The rule is stated as follows:
"If the action is for the recovery only of the full unpaid subscriptions or any portion thereof, which has already been ascertained and determined by the court (or can be, in any other manner, definitely known to the plaintiff), the action is then a mere money demand and must be at law,...
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