Lindell v. Benton

• Decision Date: 31 May 1840
• Citation: 6 Mo. 361
• Parties: LINDELL v. BENTON & KENNERLY
• Court: Missouri Supreme Court

6 Mo. 361

LINDELL

v.BENTON & KENNERLY

Supreme Court of Missouri.

May Term, 1840.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

ALLEN, for Plaintiff. On the reasons assigned on behalf of the garnishees in support of their motion, the plaintiff shows: 1. The record shows there was such a corporation, and the law recognizes it. Rev. Code of 1825, pp. 164, 175. Its existence continued under the law till 1st February, 1838. id. 174, §§ 18, 30, 16; Angell and Ames, on Corporations, pp. 406, 510. 2. The corporation, then, holding property, and being a creditor, the object of the issuing of the attachment is to reach this property, or debts due to it, which any creditor of the corporation may do. Rev. Code of 1825, p. 224, § 5. Though trustees are appointed by the law, on the dissolution of the corporation, see id. to transact the business of the corporation, and authorized to sue, and liable to be sued, yet, there being already, at the dissolution of the corporation, a judgment against it, and the law providing for the issuing of this writ in cases where it holds property, or is a creditor, and this not being the commencement or prosecution of a suit, but the end of a suit, it seems to me to be competent, to any creditor of the corporation, to proceed in this way, otherwise liens may be lost, and the end of a long and protracted litigation be defeated. That the corporation has become extinct since the levy of the attachment, by limitation, cannot affect the right of the plaintiff herein. Dowsman v. Potter, 1 Mo. R., 518; Rev. Code of 1835, p. 126, §§ 8, 9.

MAGENIS and BLAIR, for Defendants. That by the common law on the extinction of a corporation the debts due to and from it are extinguished. Angell and Ames, p. 513. That the corporation of the Bank of Missouri had ceased to exist by non user, at the time of the service of the notice by which the said proceedings were begun, as appears by the record. Munroe v. Potomac Co., 8 Peters, 287; 19 Johns. R. 474-5. § 8, Act on Corporation Laws of Mo. 125 and 135. The plaintiff in this case has not followed the law construction on either, and therefore the garnishees ought to have been discharged. Again, if the proceedings were regular in the beginning, and the president, directors and Co., of the Bank of Missouri properly sued in 1825, when in fact there were no such president, directors, &c., even then, although it appeared by the statute that the said institution might exist till 1838, yet were not the proceedings had, subsequent to the last date, against the said president, directors, &c., as such president, directors, &c., absolutely void? Tidd's Practice, 1165; 17 Johns. R. 271, Johnson v. Parmely.; § 11, Rev. Code, p. 128; Rev. Code, p. 77, § 7. The execution was irregular and void, for the same reasons which avoided the original writ, and the whole proceedings: to-wit, making the president, &c., of the Bank of Missouri, a party thereto, when there were no president, &c., Bank of Missouri; or if not void ab initio, the proceedings under it were irregular from and after the date, 1st February, 1838, when the charter expired, after which time, all debtors and creditors of that institution, if it had continued to operate regularly down to that time, would have become debtors and creditors to the trustees provided by law to administer its affairs. 9th section of the “act to regulate Proceedings against Corporations” passed, 6th February, 1835. It is contended, that if the defendants do not come, or are not shown by the proceedings to come within the terms of any one of those provisos, they were not legally summoned as garnishees, and therefore the court below was right in discharging them. First. They are not, nor is either of them, named in the writ. Secondly. The sheriff does not state in his return, that he found them in possession of any goods, moneys, or effects of the defendants. Thirdly. It does not anywhere appear, that the defendants were directed to be summoned by the plaintiff, or his attorney, as garnishees, and this ought to appear. Maulsby and Maulsby v. George Farr, 3 Mo. 438; Ridgway v. Farr, 3 Mo. R. 440.

TOMPKINS, J.

This is a proceeding, instituted in the Circuit Court of St. Louis county, by Lindell against the president, directors and company of the Bank of Missouri. The plaintiff, Lindell, obtained a judgment against the Bank, but not being able to make the money on execution, he caused an attachment to be issued on the 18th day of July, in the year 1837, which was returned, “executed by summoning Thomas H. Benton and George H. Kennerly, as garnishees, to answer such interrogatories as might be exhibited against them by the plaintiff, touching their indebtedness to the president, directors and company of the Bank, defendants in the writ of attachment. The garnishees moved to be discharged: because, 1st. At this date there is no such corporation existing as the president, directors, &c., of the Bank of Missouri, the charter thereof having expired, according to the original act of incorporation. 2d. Neither in the said writ of attachment, nor in the execution, nor in the præcipe ordering the same, are the names of the garnishees, or of either of them, mentioned; nor has the sheriff shown, by his return, that there was any property of the defendants in the hands of the garnishees, or of either of them. 3. The execution issued in this case is irregular and void.

1st. The act to incorporate the stockholders of the Bank of Missouri, passed the 31st of January, 1817, continued in force till the 1st...