Robertson v. Staed
| Decision Date | 23 June 1896 |
| Citation | 36 S.W. 610,135 Mo. 135 |
| Parties | Robertson, Receiver, v. Staed, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
W. C. & J. C. Jones and C. C. Kidd for appellant.
(1) First. The petition in an action of replevin must state that the plaintiff has a general or special property in the subject-matter of the suit. Benedict, etc., Co. v Jones, 60 Mo.App. 219. Second. A receiver can not sue in a foreign jurisdiction. Ins. Co. v. Needles, 52 Mo 17; Glenn v. Hunt, 120 Mo. 341; Booth v. Clark, 17 How. (U.S.) 322. (2) The court erred in the admission of testimony. Charlotte v. Chouteau, 25 Mo. 465; White v. Chaney, 20 Mo.App. 396; Meyer v. McCabe, 73 Mo. 241; Hofheimer v. Losen, 24 Mo.App. 659; Bailey v. Lincoln Academy, 12 Mo. 175; Ennis v. Smith, 14 How. (U.S.) 426; Pierce v. Indseth, 106 U.S. 551. (3) First. A receiver has no extra territorial power and can not sue outside of the jurisdiction of the court which appointed him. Booth v. Clark, 17 How. (U.S.) 322; Brigham v. Luddington, 12 Blatchf. (U.S.) 237; Hazard v. Durrant, 19 F. 471; Moseby v. Burrow, 52 Tex. 396; Moreau v. Du Bellet, 27 S.W. 503; Morton v. Hatch, 54 Mo. 408; May v. Burk, 80 Mo. 675; Tittman v. Thornton, 107 Mo. 500; State ex rel. v. Gambs, 68 Mo. 296; Humphreys v. Hopkins, 81 Cal. 551; Ins. Co. v. Needles, 52 Mo. 17; Glenn v. Hunt, 120 Mo. 341; High on Receivers, sec. 239. Second. In some states, on principles of comity the general rule above stated is relaxed but not to the detriment of domestic creditors. Hunt v. Ins. Co., 55 Me. 290; Taylor v. Ins. Co., 14 Allen (Mass.), 353; 37 Cent. L. J., p. 318; High on Receivers, sec. 242. Third. A receiver is an officer of the court and can not maintain an action in his representative capacity without leave of the court appointing him. Booth v. Clark, 17 How. (U.S.) 322; Schreven v. Clark, 48 Ga. 41; Alexander v. Ralfe, 9 Mo.App. 139. Fourth. When a receiver is permitted on principles of comity to sue in a foreign jurisdiction, the jurisdiction of the court appointing him must be proved. Kronberg v. Elder, 18 Kan. 150; Beach on Receivers, sec. 687; 1 Greenleaf on Evidence, sec. 540. See authorities cited under point 2.
Joseph S. Laurie for respondent.
(1) It is clear that, as a matter of right, a receiver can not demand recognition outside of the jurisdiction of his appointment, yet it is now generally held that he may, as a matter of comity, maintain suits in foreign courts, provided only that such comity will not be extended to the detriment of creditors resident in such foreign jurisdiction. 20 Am. and Eng. Ency. of Law, p. 242; Beach on Receivers, sec. 234; 23 Law Rep. Ann., p. 54; Works on Jurisdiction, pp. 57, 58; 6 Thompson on Corporations, p. 5831. (2) Independently of the matter of comity a receiver who has been appointed by a foreign court, and who by virtue of such appointment has taken into his possession and custody within said jurisdiction property belonging to an insolvent debtor, thereby acquires a special property in said chattel, and when the same, upon being sent or removed into this state or any other jurisdiction is there seized and detained by a creditor of said insolvent, he is thereby entitled, as a matter of right, to institute and maintain in the courts of this state an action of replevin for its recovery. High on Receivers, sec. 244; Beach on Receivers, secs. 234, 670; Railway Co. v. Packet Co., 108 Ill. 317; Cagill v. Wooldridge, 35 Am. Rep. 716; Hurd v. Elizabeth, 41 N. J. L. 1. (3) The objection to plaintiff's right to maintain this action, if tenable at all, affects simply his legal capacity to sue, and, being apparent upon the face of the petition, is waived by defendant's failure to file a demurrer to the petition based on such ground. Crenshaw v. Ullman, 113 Mo. 633, citing Pettingill v. Jones, 21 Mo.App. 210; State to use v. Hunt, 46 Mo.App. 616; Walker v. Deaver, 79 Mo. 664; State to use v. Sappington, 68 Mo. 454; Spillane v. Railroad, 111 Mo. 555; Butler v. Lawson, 72 Mo. 227; Hammons v. Renfro, 84 Mo. 334.
Brace, P. J., absent.
This is an action of replevin to obtain the possession of a special railroad car known as the "Sierra Majado."
The Monterey and Mexican Gulf Railroad Company is a corporation of the state of New York, which owned and operated a railroad in the republic of Mexico. This corporation having become insolvent, its property was, by a decree of the federal district court for the state of Neuvo Leon, placed in the hands of plaintiff Robertson as receiver. Under and by authority of this decree the receiver was put into the possession of all the property of the corporation, including the car "Sierra Majado." This car was used by the managing officer of the corporation in traveling over the road and elsewhere on the business of the corporation. It was the private car of the executive officers of the company, and with the other property went into the possession of the receiver within the jurisdiction of the court.
In 1892 plaintiff brought the car from the republic of Mexico to St. Louis, where it was attached at the suit of Fairbanks, Morse & Company, creditors of said corporation, and citizens of the state of Illinois. Under a writ of attachment issued in that suit, which was against the corporation, the car in question was taken in possession by defendant who is the sheriff of the city of St. Louis. This suit is by Robertson, as such receiver, to regain possession of the car.
I. The controlling controversy in this case is whether a receiver, appointed by a court of the republic of Mexico, can, as against an attaching creditor of the debtor, who resides in the state of Illinois, recover, by a suit in a court of this state, the property of the debtor, which had come into possession of the receiver in Mexico, and which was brought into the jurisdiction of the Missouri court by the receiver himself.
The general rule is that a receiver, appointed by a court of chancery, has no legal status outside the territorial jurisdiction of the court appointing him. He receives his powers from the court, and can only exercise them within its jurisdiction. The court itself has no power beyond the bounds of its jurisdiction and can confer none upon the receiver. This strict rule of legal right is generally recognized. Ins. Co. ex rel. v. Needles, 52 Mo. 17; Booth v. Clark, 17 HOW 322, 15 L.Ed. 164; Beach, Receivers, secs. 680, and note for cases.
The rule, however, is not applied with the same strictness with which it is declared, but courts often, in the spirit of comity, recognize the rights and powers of receivers appointed in other jurisdictions, and allow them to sue for and recover property which they are entitled to hold under the order appointing them or to pursue generally their remedies. This spirit of comity has been so generally acted upon as to create an exception to the rule, almost as well established as the rule itself. In most courts of the United States it is only withheld when to allow it would contravene the laws or public policy of the state, or would defeat or impair the rights of resident creditors. Beach, Receivers, sec. 682; Gluck & Becker, Receivers of Corp., sec. 57, and cases cited in notes.
So far as I am advised this court has never either recognized or denied this exception, nor do we deem it necessary to pass upon it in this case. The principle upon which we think this case must be ruled is one of law and not of comity.
The order of the federal court of Mexico required all the property of the railway corporation to be delivered into the hands of the receiver who was directed to preserve and manage it for the benefit of all the creditors. Under this order the receiver obtained possession of the car in question within the jurisdiction of the court appointing him. The possession of the receiver was, therefore, lawful when taken. The car, with all other property of the corporation, was held for the benefit of foreign as well as domestic creditors. The creditors residing in the United States had no rights superior to those of the creditors residing within the jurisdiction of the court. It can not be seen how those rights became paramount when the property was brought by the lawful possessor, within the jurisdiction of the courts of the United States. Courts will protect the rights of domestic creditors, and will not permit property located in their jurisdictions to be carried away by a receiver of a foreign state or nation, until all such creditors are satisfied. But we know of no principle upon which rights of domestic creditors can be created by reason of the property, in the lawful possession of the receiver, being brought within their jurisdiction. Such a rule would greatly embarrass the receiver in the discharge of his duties, and would, in many cases, affect injuriously the rights of creditors. Hence it is generally ruled that after a receiver has obtained possession of the property of the debtor within the jurisdiction of the court appointing him, such possession will be protected into whatever jurisdiction the property may thereafter be taken by the receiver.
The order of the court and the subsequent possession thereunder vested in the plaintiff a special property in the car which authorizes him to maintain this suit. Cagill v. Wooldridge, 8 Baxt. 580; Bank v. McLeod, 38 Ohio St. 174; Bagby v. Railroad, 86 Pa. 291; Railroad v. Packet Co., 108 Ill. 317; McAlpin v. Jones, 10 La. Ann. 552; Pond v. Cooke, 45 Conn. 126.
Henry J., in his dissenting opinion, in argument, states the rule thus: ...
To continue reading
Request your trial