Miller v. Continental Assur. Co.

• Citation: 196 S.W. 448
• Decision Date: 06 June 1917
• Docket Number: No. 14749.,14749.
• Parties: MILLER et al. v. CONTINENTAL ASSUR. CO. OF AMERICA (SPEIDEL, Intervenor).
• Court: Court of Appeal of Missouri (US)

196 S.W. 448

MILLER et al. v. CONTINENTAL ASSUR. CO. OF AMERICA (SPEIDEL, Intervenor).

No. 14749.

St. Louis Court of Appeals. Missouri.

Argued and Submitted May 10, 1917.

Opinion Filed June 6, 1917.

Rehearing Denied July 6, 1917.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by Walter J. Miller and others against the Continental Assurance Company of America, in which F. W. Speidel intervened. From an adverse judgment, the intervenor appeals. Affirmed.

Stewart, Bryan & Williams, of St. Louis, Bradley & McKay, of Kennett, and Alroy S. Phillips, of St. Louis, for appellant. John S. Leahy and Chase Morsey, both of St. Louis, for respondents.

REYNOLDS, P. J.

On or about June 10th, 1910, in a cause in which Walter J. Miller et al. were plaintiffs and Continental Assurance Company of America was defendant, and which had for its object the winding up of the affairs of the Continental Assurance Company, an insurance corporation in process of organization under the laws of this state, Matthew G. Reynolds was appointed temporary receiver by the judge of one of the divisions of the circuit court of the city of St. Louis, and directed to take charge of the affairs of that company and collect its assets. Mr. Reynolds thereupon having duly qualified as such receiver, on June 13th, 1910, took charge and control of the affairs of the company and proceeded to the collection of its assets, and from then on and now is in charge and possession of its assets and engaged in winding up its affairs, he being continued as receiver.

Afterwards and on, to-wit, July 6th, 1910, F. W. Speidel, appellant here, and intervenor in the above entitled cause, commenced an action by attachment against the Continental Assurance Company of America in the circuit court of Dunklin County, Missouri, summons returnable to the October term, 1910, of that court. A writ of attachment was sued out in that action, the writ also dated July 6th, 1910, under which and on the same date the Citizens' Bank of Senath was summoned as garnishee, funds alleged to be of those of the Assurance Company being attached in its hands. Summons in the main case was duly served on the defendant Continental Assurance Company of America at St. Louis, on July 12th, 1910.

The petition of F. W. Speidel in his action against the Assurance Company sets out that plaintiff Speidel, in consideration of certain promises and representations made to him by the defendant company, had subscribed for 250 shares of stock in that company, and had paid $3750 in cash and executed two several promissory notes for $1250 each; that the Continental Assurance Company of America, before and hereafter referred to as the Assurance Company, holds both of these notes and is threatening to compel plaintiff by force of law to pay them with the accrued interest. Charging a violation of the contract under which plaintiff had subscribed for this stock and paid part cash and executed notes for the balance of the consideration price, and averring that no stock in the defendant company had been issued to him under the contract, plaintiff prays judgment that the contract of subscription to and purchase of the stock be rescinded and cancelled and that the court order and decree a return to plaintiff of the $3750 so paid, and that the defendant company be ordered to return to plaintiff the two promissory notes, that they be cancelled, and that defendant be enjoined from selling or pledging them, pending the determination of the action.

The affidavit for attachment states various statutory grounds and in addition to the demand for summons against the Assurance Company, the petition prays for attachment of the funds of the defendant in the hands of the Citizens' Bank of Senath, and that it be summoned as garnishee.

On October 20th, 1910, Mr. Reynolds, as receiver theretofore appointed by the circuit court of the city of St. Louis, filed his interpleader in the cause in the Dunklin Circuit Court, in which Speidel was plaintiff, setting up that he had been appointed receiver of the Assurance Company by the circuit court of the city of St. Louis on June 10th, 1910, and attaching a certified copy of his appointment and of his qualification thereunder, averred that he had qualified as receiver on June 13th, 1910, and is now and since then had been in sole and entire charge and control of the affairs of the company and actively engaged in collecting its assets under the direction of the circuit court of the city of St. Louis.

The interpleader further sets up that certificates of deposit had been issued by the bank of Senath, Missouri, for the funds in its hands, $16,175.42, that they are of the property and assets of the Continental Assurance Company of America, now in possession of the receiver by virtue of the order of the circuit court of the city of St. Louis. The interplea further sets up that the circuit court of the city of St. Louis is a court of record of general jurisdiction; that it had assumed jurisdiction of the subject-matter of the case prior to the institution of the action by Speidel in the Dunklin Circuit Court, and that the St. Louis Circuit Court has full and complete jurisdiction to try all the issues involved therein; that that jurisdiction attached on June 10th, 1910, and that that court so proceeded to and is now in the exercise of its jurisdiction and that the interpleader, as such receiver, was in complete charge of the affairs of the Continental Assurance Company and actively engaged in the collection of its assets when this suit was filed in the Dunklin Circuit Court; that the latter was filed by plaintiff on July 6th, 1910, nearly a month after the circuit court of the city of St. Louis had assumed jurisdiction of the subject-matter of the cause and that it was filed by plaintiff with full knowledge of all the facts as to the commencement and pendency of the cause in the St. Louis Circuit Court, that the jurisdiction of the circuit court of the city of St. Louis having attached before the Dunklin Circuit Court assumed jurisdiction, the latter is without jurisdiction to proceed further.

On the application of the interpleader, and at his costs, the Speidel Case was passed by the circuit court of Dunklin County until December 8th, 1910. On December 8th, 1910, and in the October Term of the court, the cause of Speidel v. Continental Assurance Company was continued until the next term of the circuit court of Dunklin County, the next term of that court falling on the first Monday in February, 1911. During that same October term and on December 30th, 1910, which was the last day of the session of the October, 1910, term of the circuit court of Dunklin County, the order of continuance theretofore made in the cause was set aside and the cause set down for hearing forthwith, that is, for Friday, December 30th, 1910, and on that day the attorneys for plaintiff dismissed the attachment. Judgment was thereupon entered to the effect that on December 30th, 1910, "this cause coming on to be tried, plaintiff appearing in person and by attorney, and defendant although duly served with a summons more than 30 days before the first day of this term of the Dunklin County Circuit Court being duly called, comes not, but makes default herein, and the court after hearing the evidence and reading the petition in this case heretofore filed and being fully advised in the premises all and singular doth find the issues joined in this case for the plaintiff and against defendant." The judgment then proceeds to recite that the defendant Assurance Company had obtained the money and stock subscription from plaintiff Speidel through false and fraudulent representations made on the part of the defendant and by its officers and agents, and by like false representations, plaintiff had made, executed and delivered the two notes for $1250 each, both of them past due, and that through like false and fraudulent representations, plaintiff was induced to and did subscribe for 250 shares of the capital stock of the defendant company, "and the court doth further find that the Continental Assurance Company of America and the International Fire Assurance Company of America, are joint and twin companies, controlled and managed by the same officers and board of directors, with their moneys, properties and effects in common, that the moneys and properties paid into the International Fire Assurance Company are assets of the Continental Assurance Company of America. It is therefore ordered, considered and adjudged by the court that plaintiff have judgment against the defendant for the sum of $3750, and that defendant be adjudged to return to plaintiff the said sum of $3750, obtained from plaintiff by and through the false and fraudulent representations made on the part of the defendant, its duly authorized agents, servants and employés, together with 6 per cent interest thereon from the date so received, and that execution hereof be satisfied out of any funds of the Continental Assurance Company of America or the International Fire Assurance Company of America, and that defendant be adjudged to return to plaintiff the said two promissory notes of $1250, each now held and claimed by defendant, and that said notes be cancelled and for naught held, and that the contract of subscription for 250 shares of the capital stock of defendant company be and the same is hereby cancelled and for naught held, and that plaintiff have execution hereof against the Continental Assurance Company of America and the International Fire Assurance Company of America for the sum of $3750, together with 6 per cent interest as aforesaid, and for the return of the two promissory notes of $1250 each and for his costs in this behalf expended."

It will be noticed that this rather remarkable judgment purports to include the International Fire Assurance Company of America, although it was neither summoned...