Reed v. St. Louis & San Francisco Railroad Co.

• Decision Date: 01 March 1919
• Citation: 209 S.W. 892,277 Mo. 79
• Parties: FRED REED et al. v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants
• Court: Missouri Supreme Court

209 S.W. 892

277 Mo. 79

FRED REED et al. v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants

Supreme Court of Missouri, First Division

March 1, 1919

Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.

Affirmed.

W. F Evans and Mann, Todd & Mann for appellants.

(1) The court erred in refusing to sustain the objection to the introduction of any evidence and in refusing to dismiss the case at the conclusion of all the evidence, because upon the allegations in the petition and the admissions in the case the fact that the receivers of all the property of the railroad company, including the real estate involved in this suit, had been appointed by the United States Court, deprived the circuit court of Jasper County of jurisdiction in this action. Murphy v. Hoffman, 53 L.Ed. (U.S.) 330; Palmer v. Texas, 53 L.Ed. (U.S.), 435, 440; Rickey v. Miller, 53 L.Ed. (U.S.) 1032; State ex rel. v. Reynolds, 209 Mo. 180; State ex rel. v Williams, 221 Mo. 254; Bray v. Marshall, 66 Mo 123; Springfield S.W. Ry. v. Schweitzer, 246 Mo. 127. (2) The court should have found the issue for defendant, because plaintiffs' cause of action accrued more than ten years prior to the institution of this suit and was barred by the Statute of Limitations. Hoke v. Central Twp. Farmers' Club, 194 Mo. 576; Blair v. Railroad, 92 Mo.App. 538; Jones v. Railroad, 79 Mo. 96-7; Boyd v. Buchanan, 176 Mo.App. 56.

Gray & Gray for respondents.

(1) The appellants in declaring that inasmuch as the property of the company, including the real estate involved in this suit, was in the hands of the receivers under appointment by the United States Court, the circuit court of Jasper County was without jurisdiction in the action, state the proposition too broadly. The Federal court could have retained jurisdiction in all these matters, or at its discretion authorized the respondents to institute their suit in Jasper County or the defendant receivers to appear in the Jasper County Circuit Court and file their answer asking for affirmative relief. Smith v. St. Louis & San Francisco Railroad Co., 151 Mo. 402; Durand & Co. v. Howard & Co., 216 F. 585, L. R. A. 1915 B, 998. (2) This being true, it cannot be said that the question is one of jurisdiction in its broadest sense because the courts hold that even though at the time the suit was instituted permission had not been obtained from the court in which the receivership matters were pending, yet such permit may be obtained at any time. Hirshfeld v. Kalischer, 81 Hun (N. Y.) 606. (3) Failure to obtain the leave does not deprive the court of all jurisdiction. Southwestern Surety Ins. Co. v. Pacific Coast Casualty Co., 159 P. 788; Payson v. Jacobs, 80 P. 429; Mulcahey v. Strauss, 151 Ill. 70. In any event, the defendants by appearing and asking for affirmative relief are bound by the judgment. Manker v. Phoenix Loan Association, 100 N.W. 38; Flenthan v. Steward, 63 N.W. 924. (4) The defendants having appeared and filed their answer asking for affirmative relief, they stand in the same position as if they had been parties plaintiffs in the case, and as the record is silent as to their authority to file the answer asking affirmative relief, it will be presumed that they had the consent of the court appointing them. Manker v. Phoenix Loan Association, 100 N.W. 38. To the same effect are Carter v. Rodewald, 108 Ill. 351; Brook v. Watts, 19 S.C. 539, and Scott v. Duncombe, 49 Barb. 73. (5) The court should give proper weight to the fact that at no place in the record did the appellants in the trial court assert, claim or even insinuate that the receivers were not authorized to appear and file the answer asking for the affirmative relief. The question really is, therefore, can receivers institute a suit to quiet title and defeat a judgment obtained against them because the record does not affirmatively show that they obtained permission of the court in which the receivership matters were pending to institute the suit? We say that in the absence of such testimony, the presumption will prevail that they had obtained such permission. (6) Plaintiffs' cause of action was not barred by the Statute of Limitations when this suit was commenced. There is no proof that the company did not recognize the validity of the contract and that it was not still in force up to within a short time before this suit was instituted. Parrott v. A. Railroad Co., 81 S.E. 348. (7) Even though there be a formal breach of a contract, yet in order to preserve his right, the grantee is not compelled to file suit immediately, but he may wait until he has sustained some actual damage before instituting his suit. State ex rel. v. Tittman, 134 Mo. 162; Chambers v. Smith, 23 Mo. 174; Pineland Mfg. Co. v. Trust Co., 139 Mo.App. 209. (8) The covenant or agreement to stop trains is a continuing one and from day to day, and for that reason the Statute of Limitations does not run until the party complaining has suffered some real damage. Schaber, Admx. v. St. Paul Water Co., 14 N.Y. 874; Carnegie Realty Co. v. Carolina C. & Ry. Co., 189 S.W. 371.

BLAIR P. J. Bond, J., dissents.

OPINION

BLAIR, P. J.

This is a suit under a covenant in a deed executed by the father of respondents to the assignors of appellant railway. The other appellants are receivers of the railway company, appointed by the Federal Court for the Eastern District of Missouri on May 27, 1913. This suit was begun November 1, 1913. The covenant mentioned provided, among other things, that passenger trains should be stopped at Reeds on signal and that a failure of the grantees "to perform their part of the agreement shall make void this deed and the land herein quitclaimed shall revert to its original owner." The prayer of the petition is "for a judgment divesting said Railroad Company and said receivers of all right, title and interest in and to said premises, after giving them a reasonable length of time in which to comply with the terms of said instrument." The court adjudged that respondents were entitled to have certain passenger trains stop on signal for passengers "and that if defendants continue to fail to stop their trains on signal, then all the right, title and interest which they have acquired in and to said strips of ground should be divested and vested in plaintiffs."

The court further ordered that since the road was in the hands of the receivers no execution should issue, but a certified copy of the judgment should be filed with the appointing court and that "the enforcement of said judgment shall be in said court in which said receivership matters are pending."

A statement of some of the proceedings prior to the trial is pertinent. December 10, 1913, the company and receivers filed separate answers. These were general denials. June 15, 1914, the receivers filed an amended answer. After the evidence was in an amended petition was filed with leave, and the receivers refiled their amended answer, and the company refiled its answer. The amended answer of the receivers consisted of (1) a general denial, (2) a plea that defendants had been in the "actual, open, visible, notorious possession of the strip of ground . . . described in the petition, and claiming to be the owners of the same, for more than ten years prior to the institution of plaintiffs' suit. That during all of said time there has been on said strip of ground railroad tracks and a depot, and defendants have been engaged in operating thereon a railroad, and that said strip of ground forms an integral part of its right of way and line of railroad over which defendants operate their trains from St. Louis, Missouri, to and through Jasper County, Missouri, and on into the States of Kansas and Oklahoma. Wherefore, defendants pray that the court will adjudge the title of said strip of ground described in plaintiffs' petition to be well vested in these defendants and for costs." The third paragraph sets up the ten-year Statute of Limitations as a defense.

On the trial the defendants objected to the introduction of any evidence on the ground that the petition failed to state a cause of action and that the petition "shows that the property of the railroad is in the hands of receivers, and the jurisdiction of the res of the property should be in the court appointing the receivers; this court has no jurisdiction."

Appellants raise two questions. First, that the Jasper Circuit Court had no jurisdiction, since the property was in the hands of receivers appointed by another court. Second, that the cause of action was barred by the ten-year Statute of Limitation.

I. The first contention is that the fact that the railroad property was in the hands of receivers appointed by another court deprived the courts of Jasper County of jurisdiction in this case.

(a) It is well settled that one court may not appoint a receiver and take from the custody of a receiver previously appointed by lawful order of another court the assets and estate in the latter's hands as receiver. [State ex rel. v. Reynolds 209 Mo. 161, 107 S.W. 487.] It was held also in State ex rel. v. Williams, 221 Mo. 227, 120 S.W. 740, and Hardware Company v. Building Company, 132 Mo. 442, that in case one court has taken jurisdiction of a particular subject-matter and rendered its decree and the right of appeal is open to the losing party, a second court has no jurisdiction to open up and cause to be relitigated the questions determined by the decree rendered by the court which first took jurisdiction. The authorities generally are in accord with these decisions. It is apparent this case does not fall within either of these principles. The contention of appellants is, in substance, that no action or suit can be brought against receivers without leave of the court...