Matter of Phi Fathers Ed. Assoc.
| Decision Date | 17 June 1947 |
| Docket Number | No. 27246.,27246. |
| Citation | 203 S.W.2d 885 |
| Parties | IN THE MATTER OF PHI FATHERS EDUCATIONAL ASSOCIATION. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis. — Hon. Joseph J. Ward, Judge.
Order of circuit court overruling petitioner's motion to quash execution affirmed.
Louis E. Miller, Miller & Landau, B. Sherman Landau for appellants.
(1) The order overruling the motion to quash the execution and garnishment was final and appealable. Gale v. Michie, 47 Mo. 326; Ex parte James, 59 Mo. 280. It was not necessary to file a motion for new trial. Slagel v. Murdock, 65 Mo. 522; City of St. Louis v. Brooks, 107 Mo. 380, 18 S.W. 22; Wyoma Leather Co. v. Modern Hat & Cap Mfg. Co., (Mo. App.), 67 S.W. (2d) 850. (2) Petitioners appeared in court only in their representative capacities as officers of the association, and on behalf of the association. The judgment taxing costs against them as individuals is void, and the execution and garnishment issued on such judgment are invalid. Petitioners' motion to quash the execution and garnishment should have been sustained. Section 5437, R.S. Mo. 1939; 47 C.J. 176, 177; 46 C.J. 1047; Chiles v. School District of Buckner, 111 Mo. App. 52, 54. (3) There is no statute in the State of Missouri authorizing an allowance to an amicus curiae to be taxed as costs in a proceeding of this nature, and a judgment attempting to so tax such allowance as costs is an absolute nullity. In re Thomasson, (Mo. Sup.), 159 S.W. (2d) 626, 628; Ex parte Nelson, 253 Mo. 627, 162 S.W. 167; City of St. Louis v. Meintz, 107 Mo. 611, 615, 18 S.W. 30, 31; State ex rel. Gentry v. Becker 351 Mo. 769, 174 S.W. (2d) 181.
Harry S. Gleick, Pro Se, Respondent, Gleick & Strauss of Counsel.
(1) The Court had jurisdiction to appoint an amicus curiae, to allow reasonable compensation for his services, and to tax such allowance against the persons instituting the proceeding. Section 5437, Revised Statutes of Missouri, 1939; In re St. Louis Institute of Christian Science, 27 Mo. App. 633; State ex rel. v. Smith, 5 Mo. App. 427; Watkins v. McDonald, 70 Mo. App. 357; Paxson v. MacDonald, 97 Mo. App. 165, 70 S.W. 1101; Jones v. York, 142 Mo. 38, 43 S.W. 384; Chilton v. Drainage District, 228 Mo. App. 4, 63 S.W. (2d) 421. (2) The designation of the respective offices held by the petitioners is merely descriptio personae. Stone v. Interstate Natural Gas Co., 103 F. (2d) 544; Forrester v. Cantley (Mo. App.), 51 S.W. (2d) 550. (3) The promoters of a Missouri corporation are liable, and the corporation is not liable, for obligations incurred prior to incorporation. (a) Promoters of a corporation are personally liable as partners for their engagements made prior to incorporation, and the subsequent formation of the corporation does not relieve them of such liability. Queen City Furniture & Carpet Co. v. Crawford, 127 Mo. 356, 365, 30 S.W. 163; Fay & Co. v. Richmond, 18 Mo. App. 355, 357, 362; Lewis v. Fisher, 167 Mo. App. 674, 676-677, 151 S.W. 172; Reynolds v. Title Guar. Trust Co., 196 Mo. App. 21, 36, 189 S.W. 33, 37; Van Zandt v. St. Louis Wholesale Gro. Co., 196 Mo. App. 640, 659, 190 S.W. 1050, 1055; Commerce Trust Co. v. McMechen (Mo. App.), 220 S.W. 1019. (b) Prior to the completion of the final act necessary to bring a Missouri corporation into existence, it has no power to do business or create liabilities or act as a principal. Sloan v. Fraternal Home Ass'n, 139 Mo. App. 443, 449, 123 S.W. 57; Van Noy v. Insurance Co., 168 Mo. App. 287, 295, 153 S.W. 1090, 1093. (c) Incorporators cannot escape liabilities created by them prior to incorporation, by substituting liability of the corporation for their own, unless the obligee consents to the substitution. Armstrong v. Henley, 182 Mo. App. 320, 322, 170 S.W. 402; Weir Furnace Co. v. Bodwell, 73 Mo. App. 389, 392; Fletcher, Cyclopedia Corporations, Vol. 1, Sections 215, 216, pp. 719, 724. (4) Where one contracts in his own name as agent, he is personally liable if he does not at the time represent a legally responsible principal. Agency implies the existence of a principal. Riffe v. Proctor, 99 Mo. App. 601, 608, 74 S.W. 409, 410; Simmons v. Mo. Pac. Ry. Co., 19 Mo. App. 542, 544; Van Noy v. Insurance Co., 168 Mo. App. 287, 295, 153 S.W. 1090, 1093; Reynolds v. Title Guar. Trust Co., 196 Mo. App. 21, 36, 189 S.W. 33, 37; Blakely v. Bennecke, 59 Mo. 193.
This is an appeal from the order of the Circuit Court of the City of St. Louis overruling a motion to quash an execution issued upon an order allowing a fee of $200 to an amicus curiae appointed by the court to examine a petition for the incorporation of an educational association, and directing that the allowance to the amicus curiae be taxed as costs against the four petitioners who instituted the proceeding.
The four petitioners were, respectively, the president, the vice-president, the secretary, and the treasurer of the proposed corporation.
According to the artices of agreement, the objects and purposes of the association were to provide housing facilities for students of Washington University; to encourage and assist students in obtaining the benefits of higher education; to contribute financial aid to students who would otherwise be unable to attend the university; and to provide the physical necessities whereby ambitious and moral students might have the advantage of association and mutual co-operation while obtaining a college education.
Upon the institution of the proceedings, the court appointed Honorable HARRY S. GLEICK of the local bar as amicus curiae, and in due time Mr. GLEICK filed his report recommending that the prayer of the petition be granted. He further suggested that the court make him a reasonable allowance for his services as amicus curiae, the same to be taxed as costs.
Approving the report, the court granted the petition for the pro forma decree, and thereupon entered an order allowing the amicus curiae the sum of $200 for his services, with such sum to be taxed as costs against the petitioners.
Thereafter the amicus curiae filed his application for an execution to issue against the petitioners to satisfy the allowance which had been taxed against them. Execution was issued and delivered to the Sheriff of Cole County, who summoned the Massachusetts Mutual Life Insurance Company as garnishee.
In due time the petitioners filed their motion to quash the execution assigning as the ground therefor that they had only appeared in court in their representative capacities as officers of the association, and that the order purporting to tax the particular item of costs against them individually was null and void and of no effect.
The motion to quash was overruled, whereupon the petitioners gave notice of appeal, and by proper steps have caused the matter to be transferred to this court for our review.
The questions presented on this appeal are whether the court had the power to make an allowance to the amicus curiae, and, if so, whether it was proper to charge the allowance against the four petitioners.
The statute provides that whenever the judge to whom a petition for a pro forma decree is presented shall entertain any doubt as to the lawfulness or public usefulness of the proposed corporation, it shall be his duty to appoint some competent attorney as a friend of the court, whose duty it shall be to examine the petition and show cause, if any there be, why the prayer of the petition should not be granted. Sec. 5437, Revised Statutes Missouri 1939, (Mo. R.S.A., sec. 5437).
While it is true that the statute makes no express provision for compensation, the power conferred for the appointment of an amicus curiae necessarily implies the power to award him reasonable compensation for the services he renders. It could not have been intended that the duties imposed by an appointment under the statute were to be gratuitously performed. There are many instances where a court, lacking express authority, is nevertheless regarded as having inherent or implied authority to award compensation for services necessary to the determination of a cause; and the rule has been recognized as properly extending to one appointed to serve as amicus curiae. In re The St. Louis Institute of Christian Science, 27 Mo. App. 633; 3 C.J.S., Amicus Curiae, sec. 4; 2 Am. Jur., Amicus Curiae, sec 8.
There is obviously a vast difference between services which an attorney may render in the ordinary capacity of amicus curiae, and those which he may be called upon to perform as the court's representative in upholding its dignity and authority. In the latter instance he performs a duty which is imposed upon him by virtue of his status as an officer of the court, and which grows out of his relation to the court and to the public. Where the dignity and authority of the court have been assailed, it is not only his duty but his privilege to rise to its defense; and in accepting the honor of representing the court, he is not entitled to compensation for the services he performs. State ex rel. v. Becker, 351 Mo. 769, 174 S.W. (2d) 181. Not so, however, where he is appointed by the court to perform certain labors and examinations which may be necessary in order to assist the court in reaching a proper conclusion with respect to some private litigation which is pending before it. In such a case the public interest is in nowise involved; and even though the attorney serves in an official capacity, he nevertheless has the right to be awarded compensation to be paid by the party litigant responsible for the situation that prompted the court to make the appointment.
It is to be kept in mind that in sustaining the right to compensation, we are speaking only of an amicus curiae in the sense in which Mr. GLEICK served in the case at bar, that is, as one appointed by the court itself to aid and advise the court in a case pending before it with respect to material matters about...
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