McCourt v. Grove

• Decision Date: 09 January 1912
• Citation: 142 S.W. 768,162 Mo.App. 521
• Parties: AMELIA McCOURT et al., Respondents, v. ALBERT T. GROVE, Respondent; SAMUEL M. PIPER, Appellant
• Court: Missouri Court of Appeals

142 S.W. 768

162 Mo.App. 521

AMELIA McCOURT et al., Respondents, v. ALBERT T. GROVE, Respondent;

SAMUEL M. PIPER, Appellant

Court of Appeals of Missouri, St. Louis

January 9, 1912

Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.

AFFIRMED.

Order affirmed.

Christian F. Schneider for appellant.

(1) Samuel M. Piper, having by leave of court, filed an interplea and petition of claims, in which he claimed an interest in the property by reason of ownership of the judgment in the case of Piper Carriage Company v. Harry H. Grove et al. No. 32097, room 7, and suit to enforce same, No. 65370 room 5, he was entitled to a hearing on his said interplea and petition of claims. R. S. 1909, secs. 2564, 2575, 2603 2604, 2605, 2606, 2607 and 2608. (2) This being a proceeding in equity (partition), and the court having jurisdiction of the parties and of the subject-matter (the fund arising from the sale of the land), it was within the province and the duty of the court to hear and determine all the rights of all the parties touching the matter in controversy. Donaldson v. Allen, 213 Mo. 294; Budde v. Rebworth et al., 137 Mo. 179; Benoist v. Thomas, 121 Mo. 660; McGregor v. Hampton, 70 Mo.App. 98; Holloway v. Holloway, 97 Mo. 628. (3) The court in this suit had the right to allow or consider the amendment of the judgment in the case of Piper Carriage Company v. Harry H. Grove and Thomas P. Dement, doing business as Economy Buggy Company, No. 32097, Division No. 7, and to decree, if upon hearing the testimony, that said Samuel M. Piper was the owner of said judgment and that the land in controversy (or the interest of claimed therein by Albert T. Grove) was in truth the property of said Harry H. Grove and subject to the payment of said judg ment. R. S. 1909, sec. 1851; Iron Works v. Homes, 62 Mo.App. 372; Bank v. Noel, 94 Mo.App. 498; Bank v. Fudge, 109 Mo.App. 186; Ward v. Pine, 50 Mo. 38; Thompson v. Allen, 86 Mo. 85.

Shields & Orthwein for respondents.

(1) In the eyes of the law a firm and a corporation are different persons. The Piper Carriage Company, a corporation, the defendant in partition failed to answer. Samuel J. Piper was an interpleader. Allen & Co. v. M. & S. Co., 73 Mo. 688; Courtney v. Sheehy, 38 Mo.App. 293; Altheimer v. Teuscher, 47 Mo.App. 286. (2) The confirmation of the sale in partition was a final judgment from which an appeal would lie and was binding on all the parties to the suit. Said judgment declared that the fund in dispute should be placed in the hands of the circuit clerk pending the outcome of the suit in No. 5. The appellants failed to appeal from this judgment or from the interlocutory decree, on the contrary requested it, so that when the suit in No. 5 was dismissed the fund by the court's order became the respondent's property free from any adverse claim. Clark v. Sires, 193 Mo. 502; Colier v. Lead Company, 208 Mo. 246; Martin v. Trail, 142 Mo. 85; Harkson v. Sanford, 90 Mo. 477.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.--

The principal case is a suit in partition under the statute, but the appeal involved here is from an order of the court striking claimant's petition from the files.

It appears that claimant, Samuel M. Piper, conducted a carriage business in the city of St. Louis under the trade name of the Piper Carriage Company, and in November, 1906 recovered a judgment in the St. Louis Circuit Court for the sum of $ 853.49 in that name, as though the Piper Carriage Company were a corporation, against Harry H. Grove and Thomas P. Dement, jointly. About two years thereafter, claimant Piper conceived that Harry H. Grove owned a one-third interest in a parcel of real estate in St. Louis which was concealed through the title standing in the name of his brother, Albert T. Grove. On this hypothesis, Piper instituted a suit in Division No. 5 of the circuit court of St. Louis in aid of the judgment he had theretofore recovered in the name of the Piper Carriage Company, as a corporation, with the purpose of having Harry H. Grove declared the owner of such interest in the real estate and subjecting it to the payment of his judgment of $ 853.49. After such suit was instituted plaintiffs, Amelia McCourt et al., instituted this suit in partition, under the statutes, against Albert T. Grove et al., for the purpose of partitioning the identical real estate which plaintiff Piper asserted in his suit was owned in part by Harry H. Grove. The partition suit was assigned to and proceeded in Division No. 7 of the St. Louis Circuit Court, while claimant's suit against Harry H. and Albert T. Grove, by which he sought to subject the alleged interest of Harry H. Grove in the real estate to the payment of the judgment in favor of the Piper Carriage Company, proceeded in Division No. 5 of the same court.

After this partition suit was instituted, Samuel M. Piper filed his petition therein under the provisions of the statute (Secs 2564, 2565, 2575, 2603, 2604, 2605, 2606, 2607, R. S. 1909), laying claim to the interest, if any, of Harry H. Grove to the one-third portion of such real estate standing in the name of Albert T. Grove, his brother, because of his suit then pending in Division No. 7 of the circuit court to subject such interest to the payment of the judgment in favor of the Piper Carriage Company, a corporation. The partition suit proceeded both to interlocutory and final judgment, and as the property was not susceptible to division in kind, it was ordered sold. A sale was made and the proceeds of one-third part thereof, represented by the interest of Albert T. Grove, was impounded in court, under a proper order to that effect, to await the determination of the suit of this claimant against Harry H. Grove and Albert T. Grove, whereby such property was sought to be subjected to the payment of the judgment against Harry H. Grove and Thomas P. Dement in favor of the Piper Carriage Company. It appears that there was no such corporation as the Piper Carriage Company and that such was the trade name only, under which Samuel M. Piper conducted his business, and this was the fact when the judgment was recovered. After filing two petitions in Division No. 7, in the suit whereby Samuel M. Piper sought to have the interest of Albert T. Grove in such real estate declared the property of Harry H. Grove and subjected to the payment of the judgment in favor of the Piper Carriage Company, a...