Orchard v. National Exchange Bank

• Decision Date: 22 December 1906
• Citation: 121 Mo. App. 338,98 S.W. 824
• Parties: ORCHARD v. NATIONAL EXCHANGE BANK.
• Court: Missouri Court of Appeals

98 S.W. 824

121 Mo. App. 338

ORCHARD v. NATIONAL EXCHANGE BANK.

St. Louis Court of Appeals. Missouri.

December 22, 1906.

1. WRIT OF ERROR—REVIEW OF RECORD PROPER — REVERSAL OF JUDGMENT — WHEN AUTHORIZED.

The appellate court, on a writ of error, will examine the record proper, and reverse the judgment for error appearing on the face thereof, where it appears that the court had no jurisdiction of the parties or of the subject-matter, or the petition fails to state a cause of action, though motions for new trial or in arrest were not filed.

2. RECEIVERS — CLAIMS — EXPENSES OF RECEIVERSHIP —PRIORITY.

The expenses of a receivership have priority over other claims, and must be first paid; and, when property is turned over by the receiver to a third person as owner, the court may order him to pay back to the receiver such sum as may be necessary to pay the expenses of the receivership, on there being a deficiency of assets.

3. SAME—ORDER OF REPAYMENT TO RECEIVER —JURISDICTION OF COURT.

A bank received assets from a receiver. On the final settlement there was an insufficiency of assets to pay the expenses. The bank voluntarily came into court and filed objections to the settlement. Held, that the court, having jurisdiction of the bank and the subject-matter, was authorized to enter an order requiring the bank to return to the receiver a sum sufficient to cover the balance due him for the expenses of the receivership.

4. SAME—ENFORCEMENT OF ORDER.

An order of court in receivership proceedings, which requires a third person who had received assets from the receiver to return to the receiver a sum sufficient to pay the expenses of receivership on a deficiency of assets, may be enforced by proceeding for contempt, sequestration of assets, or appropriate equitable remedy, but not by the entry of a judgment without pleading or process, in the absence of either an agreement or voluntary appearance of the third person.

5. APPEAL—RECITALS IN JUDGMENT—EFFECT.

An appellate court is not concluded by the recitals in the judgment that defendant was duly served with process and appeared, filing its answer, and defaulted, but may inspect the whole record, and, if it appears that the court had no jurisdiction over the person, the judgment will be adjudged void.

6. PROCESS—SERVICE—STATUTES.

In a receivership proceeding, the court, on a final settlement of the receiver, entered an order requiring a bank which had received assets from the receiver to repay to him a specified sum needed for the payment of the expenses of receivership. A copy of the order was served on the bank, requiring it to appear and show cause in what purported to be a new action. Held, that the bank was not served with process necessary to institute a suit, under Rev. St. 1899, §§ 569, 570, defining a summons and providing for the manner of service thereof.

7. APPEARANCE—JURISDICTION ACQUIRED.

A defendant, who does not appear to the merits of the action, but asserts that there is no such action pending, and denies the jurisdiction of the court therein, does not voluntarily appear, and the court does not acquire jurisdiction over him.

8. JUDGMENT—PLEADINGS TO SUSTAIN JUDGMENT.

Where there are no pleadings in a case, no judgment can be entered.

Error to Circuit Court, Oregon County; W. N. Evans, Judge.

Action by James Orchard against the National Exchange Bank. There was a judgment for plaintiff, and defendant brings error. Reversed.

Sebree & Farrington and Geo. Pepperdine, for plaintiff in error. James Orchard, pro se.

NORTONI, J.

The record before us shows the following regular and irregular proceedings to have been had in the circuit court of Oregon county. First, we find a judgment in regular form for the recovery of money entered by said court at its Feburary term, 1905, in favor of James Orchard, defendant in error, as plaintiff there, and against the National Exchange Bank, plaintiff in error here, as defendant there, for $364, together with interest, and for costs, "and that the plaintiff have execution for said judgment and costs." It is from this judgment that the bank has sued out, and now prosecutes, this writ of error. As we further examine into the record, we ascertain that there was no such case in the court. There was no pleading filed by the plaintiff; there was no service of process had upon the defendant bank; there was no voluntary appearance there of such bank, by filing an answer or otherwise; nor had the parties appeared by agreement; nor was there a motion for new trial or in arrest, filed by the bank, seeking a review of such judgment, for the very good reason, it is said in the briefs, that the bank had no knowledge that such proceeding was pending, etc. From these facts, the case appears novel indeed. Without some further explanation, it would appear almost, if not quite, startling to the profession to know that a court should proceed to enter up judgment against a party in a case stated, when in fact the entire record disclosed that there was no such case in the court. It is manifest that this state of the record results from error, and the following history of the final proceedings which resulted in the judgment mentioned and antecedent proceedings in another and distinct case will be recited, in order that an accurate understanding may be had with respect to the whole matter.

It appears that there was pending in the circuit court of Oregon county the case of State ex rel. E. C. Crow, Attorney General, Relator, v. Oregon County Bank, in which case one J. Posey Woodside had, at a prior term of court, been appointed receiver of the said Oregon County Bank. When and for what reason the receiver was appointed in the first instance does not appear, nor is any of the record of that case before us, prior to what is termed the "surrendering settlement" of the receiver. The record does disclose, however, that there was pending in the court the case, as stated, of the Attorney General against the Oregon County Bank, and that J. Posey Woodside was acting receiver therein; that at the August term, 1902, of said court, the receiver filed what is termed a "surrendering settlement" of such receivership. Among other things, this report shows that the present plaintiff in error, the National Exchange Bank of Springfield, Mo., had, under some sort of an order of the court or judge at chambers on a previous date, become interested in the defunct bank and the receivership resulting therefrom, and had in some manner, legitimate, of course, probably under an order of the court, received from the receiver several thousand dollars of the assets of the defunct Oregon County Bank. Appended to this "surrendering report" of the receiver is a statement of the expenses of the receivership, such as amounts expended for attorney's fees, court costs, clerical work, etc., and also an item for compensation for the receiver by way of commissions for his services. To this report and statement of expenses, the plaintiff in error here, National Exchange Bank, voluntarily appeared and filed its objections and exceptions, challenging several matters therein, which, aside from the fact of the voluntary appearance of the bank, are immaterial on this record. It then appears that later during the same term of court, in the same case of the Attorney General against the bank, the receiver's report was taken up and considered by the court, by the court approved, and the expense account to which the National Exchange Bank had objected was allowed to the receiver in full, as prayed by him. No order appears overruling the objections filed by the National Exchange Bank; the only order being that of the court approving the receiver's report allowing him the expenses of administration as set forth in his account and commissions prayed for by him. In the same order the court finds that there are insufficient moneys in the hands of the receiver to compensate him for the expenses of administration and his commissions allowed, and, in substance, that the estate is indebted to him therefor in the balance of $364, and it therefore ordered that the present plaintiff in error, "National Exchange Bank, return to the receiver available assets delivered to them by the receiver in the sum of $364 to cover the balance due him and that thereupon the receiver be discharged." All of this occurred at the August term, 1902, in the case of the Attorney General against the bank. Nothing further appears on the record until the February term, 1904, and in fact the case of the Attorney General against the bank seems to have entirely...