Miller v. Perkins

• Decision Date: 05 March 1900
• Citation: 55 S.W. 874,154 Mo. 629
• Parties: MILLER et al. v. PERKINS, Judge.
• Court: Missouri Supreme Court

55 S.W. 874

154 Mo. 629

MILLER et al. v. PERKINS, Judge.

Supreme Court of Missouri.

March 5, 1900.

CORPORATIONS — RECEIVERS — APPOINTMENT — ACTIONS AT LAW.

Rev. St. 1899, § 753, authorizing the appointment of a receiver "whenever such appointment shall be deemed necessary, to keep and preserve any money or other thing deposited in court," and "to keep and protect any business intrusted to him pending legal or equitable proceeding concerning the same," does not authorize a circuit court to appoint a receiver for a corporation in an action at law against it on a note.

In banc. Application for a writ of prohibition by Miller Bros. and others against J. D. Perkins, as judge of the circuit court of Jasper county. Granted.

Tucker & Moore and Thurman, Wray & Timmonds, for plaintiffs. W. Cloud and Davis, Cole & Burnett, for defendant.

BRACE, P. J.

This is an original proceeding in this court for a writ of prohibition against defendant, as judge of the circuit court of Jasper county. The questions to be decided arise upon a demurrer to the return of the defendant to the preliminary rule to show cause, from which it appears that the First National Bank of Lamar is a banking corporation located at Lamar, Mo. The Lamar Water & Electric Light Company is a corporation located at the same place, and engaged in operating a water and electric light plant in said city. The First National Bank on the 14th day of October, 1898, filed suit in the Barton county circuit court against the Lamar Water & Electric Light Company, J. Guinney, E. Bennett, and J. D. Porter on a promissory note for $1,500 executed by said parties to the bank. The petition is in ordinary form, and no relief is prayed except judgment on said note for the debt, interest, and costs. Summons was issued against the defendants in said suit, and served on all of them in due time for the January term, 1898, of the Barton county circuit court. On October 15, 1898, an application or petition was presented to the Honorable D. P. Stratton by the plaintiff in the suit on the note, and entitled as in said suit, praying the court to appoint a receiver to take charge of the property of the Lamar Water & Electric Light Company, alleging that the plaintiff in said application had brought said suit on the note, as hereinbefore set forth, in the Barton county circuit court; and that the Lamar Water & Electric Light Company owned certain property, real and personal (describing it), and that the other defendants were insolvent; that the plaintiffs herein, Miller Bros., H. B. Allen, and others, had obtained judgments against the Lamar Water & Electric Light Company, and that Thurman & Wray were seeking to obtain judgment against said company, and that there were many other current debts unpaid; that those having judgments were seeking to enforce the same by executions, and that defendant Lamar Water & Electric Light Company had mortgaged its property to secure bonded indebtedness aggregating a large sum of money; that the company was "involved by reason of the premises," and that, unless a receiver was appointed, plaintiff and other creditors would be defeated in the collection of their claims, even if judgment was rendered in their favor, and the property of the defendant would be sacrificed and lost, without benefit to creditors, — and concluded with a prayer for a receiver to be appointed, with authority to take charge of the property of the defendant corporation. The application for the appointment of a receiver was verified by affidavit. Notice of its presentation to Judge Stratton was accepted by the president and general manager of the defendant corporation, who was present and appeared for said corporation at the appointment of the receiver by Judge Stratton in vacation. The order appointing the receiver in vacation by Judge Stratton found that the allegations in the petition were true, and appointed M. T. Davis, of Aurora, Lawrence county, Mo., receiver, with authority to take possession of the property of the defendant corporation, etc. The petition and order appointing M. T. Davis receiver were on the 17th day of October, 1898, filed in the office of the clerk of the circuit court of Barton county, Mo., and Davis duly qualified and filed a bond in the sum of $20,000, which was approved. At the January term of the circuit court of Barton county, Mo., commencing on the 2d day of January, 1899, and on the first day of the term, one of the plaintiffs herein, H. B. Allen, filed a motion to vacate the order appointing Davis receiver, in which motion he set forth his interest in the property of the Lamar Water & Electric Light Company, as a judgment creditor; the reasons for vacating the order appointing the receiver and for discharging him being set out in the motion, the principal one of which is that the court had no jurisdiction to appoint a receiver under the facts stated in the petition, as shown by the record. Pending the motion the defendant Lamar Water & Electric Light Company, by its general manager, J. Guinney, filed its affidavit for a change of venue on the ground of the prejudice of the judge. Allen filed his motion for leave of the court to levy his execution, which was withdrawn, and the venue in said cause was, on stipulation signed by the the president of the bank and the president of the water company, changed to Jasper county, Mo., without the motion of plaintiff Allen to revoke the appointment having been passed on. In the circuit court of Jasper county on the ____ day of March, 1899, plaintiff filed in said court what is designated as an "amended and additional petition." This petition was not verified, and made the persons alleged to be holders of the bonds of said company defendants, alleging that there were other creditors, whose names and amounts of their claims were unknown, and left out the names of Guinney, Bennett, and Porter, which were in the original petition. On the 22d day of April, 1899, the plaintiff the First National Bank filed its motion to strike out the motion of H. B. Allen to revoke the order appointing the receiver, pending which motion the plaintiffs herein, Miller Bros. and Thurman & Wray, filed their separate application to be made parties defendants, which application set forth their interest as judgment creditors having a lien upon the property of the Lamar Water & Electric Light Company, and that their interests and rights were being interfered with in said cause, which application was verified by affidavit, and states that the answer accompanies the application. This application was sustained by the court, and Miller Bros. and Thurman & Wray were made defendants. Thereupon they filed their...