Skatoff v. Alfend

• Decision Date: 30 December 1966
• Docket Number: No. 51985,No. 1,51985,1
• Citation: 411 S.W.2d 169
• Parties: Louis SKATOFF, (Plaintiff) Appellant, v. Michael ALFEND, Celia Alfend, Samuel Alfend, National Union Fire Insurance Co., U.S. Fidelify & Guaranty Co., Aetna Casualty & Surety Co., Commercial Union Insurance Co., Home Insurance Co. and Lloyd's of London, (Defendants) Respondents
• Court: Missouri Supreme Court

Page 169

411 S.W.2d 169

Louis SKATOFF, (Plaintiff) Appellant, v. Michael ALFEND, Celia Alfend, Samuel Alfend, National Union

Fire Insurance Co., U.S. Fidelify & Guaranty Co., Aetna

Casualty & Surety Co., Commercial Union Insurance Co., Home

Insurance Co. and Lloyd's of London, (Defendants) Respondents.

No. 51985.

Supreme Court of Missouri, Division No. 1.

Dec. 30, 1966.

Motion for Rehearing or to Remand Denied Feb. 13, 1967.

Newmark & Baris, Irl B. Baris, St. Louis, for appellant Louis Skatoff.

Morris A. Shenker, R. J. Slater, St. Louis, for respondent Michael Alfend.

Jesse E. Bishop, St. Louis, for respondents Celia Alfend and Samuel Alfend.

WELBORN, Commissioner.

'This action originated in the Circuit Court of St. Louis County as an attempt by Louis Skatoff and Joseph F. Melbourne, two partners of a three-man partnership, to secure an accounting from Michael Alfend, the third partner, in connection with the dissolution of the partnership. However, on the part of Skatoff the suit developed broader ramifications, including a demand by him that the subsequently joined defendants, Celia Alfend and Samuel Alfend, Trustees, be divested of title to certain real estate located in the City of St. Louis. Relying on Section 508.030, RSMo 1959, V.A.M.S., which provides that 'Suits * * * whereby the title thereto (to real estate) may be affected, * * * shall be brought in the county where such real estate, or some part thereof, is situated' the court entered an order and judgment sustaining the motions of defendants Celia Alfend and Samuel Alfend, Trustees, for a summary judgment of their dismissal, and of defendant Michael Alfend for dismissal of Skatoff's second amended petition. Skatoff's appeal to this court (the St. Louis Court of Appeals) followed in due course.' Skatoff v. Alfend, et al., Mo.App., 398 S.W.2d 461.

The St. Louis Court of Appeals concluded that the action directly involved title to real estate and that, under § 3 of Art. V, Const. of Mo., 1945, V.A.M.S., exclusive jurisdiction of the appeal lay in this court. 398 S.W.2d 464. The appeal was accordingly transferred here.

Inasmuch as the details of the course of the litigation are set out in the opinion of the Court of Appeals, we will confine our statement to the matters which we consider here pertinent. The action began in the St. Louis County Circuit Court as one for an accounting in connection with the dissolution of a partnership. By his first amended petition, plaintiff Skatoff sought, in addition to the accounting, to set aside transfers of real estate by defendant and former partner Michael Alfend to added defendants Celia Alfend and Samuel Alfend. Upon a showing in the defendant's return to an order to show cause that the real estate involved was situated in the City of St. Louis, the St. Louis County Circuit Court dismissed the first amended petition on the grounds that, under § 508.030, RSMo 1959, V.A.M.S., exclusive venue of the action lay in the St. Louis Circuit Court.

Skatoff filed a second amended petition. It differed from the first amended petition in that, in what the Court of Appeals described as 'a patent subterfuge' (398 S.W.2d 464), all references to real estate were eliminated and the word 'assets' substituted therefor. The petition also alleged that the 'transfers of assets * * * were fraudulent transfers, having the effect of hindering, delaying and defrauding plaintiff Skatoff in his rights as a creditor of defendant Michael Alfend.' Upon the showing by affidavit in support of defendants' motion for summary judgment that the 'assets' referred to in the second amended petition were the real estate described in the first the trial court again dismissed plaintiff's petition.

The Court of Appeals, concluding that the second amended petition also sought to set aside a fraudulent conveyance of real estate, held, on the authority of Balch v. Whitney, Mo.Sup., 273 S.W.2d 497, Goodman v. Crader, Mo.Sup., 227 S.W.2d 457, and Herriman v. Creason, 352 Mo. 1176, 181 S.W.2d 502, that the appeal directly involved title to real estate and transferred the cause here. We agree with the reasoning and conclusion of the Court of Appeals.

The appellant's position, as stated in his brief in the St. Louis Court of Appeals, appellant having filed no new brief in this court and not having argued the appeal here, is that his 'request to the court concerning the real estate and other assets was only incidental to the primary relief of the dissolution and accounting.' He contends that, since the St. Louis County Circuit Court's jurisdiction of the dissolution and accounting was not questioned, it had the incidental jurisdiction to conserve the partnership assets pending dissolution. However, the basis of this contention is not supported by plaintiff's petition. He does allege that the real estate in question had formerly been the property of the partnership. However, the petition alleges that it was transferred to defendant Michael Alfend pursuant to the dissolution agreement and the petition attacks the subsequent transfer by Alfend not on the grounds of its being a fraud upon the right of the partners, but as fraudulent upon plaintiff's rights as a creditor of Alfend, presumably under the dissolution agreement.

The joining of the action to set aside the fraudulent conveyance with the action for accounting and partnership dissolution does not permit the plaintiff to avoid the mandatory effect of § 508.030, RSMo 1959, V.A.M.S., as to the place of bringing an action affecting title to real estate. See Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381, 384; American Surety Co. of New York v. Edwards & Bradford Lumber Co., D.C., 57 F.Supp. 18, 25--26(9--14); Buck v. Lockwood, 193 Mich. 242, 159 N.W. 509, 514 (10, 11).

The appellant also suggests that the trial court should not have disposed of this matter upon the defendants' motion for summary judgment. Although the defendants' pleading was so entitled the grounds stated were authorized to be raised by a motion to dismiss under Civil Rule 55.31, V.A.M.R., and the motion was adequate to support such action.

Therefore, insofar as the petition sought to set aside the conveyance, the trial court's dismissal was correct. However, the improper venue for that relief did not render improper the venue for the relief originally sought of accounting and dissolution. The St. Louis County Circuit Court had jurisdiction insofar as such relief was sought. The claim to set aside the fraudulent conveyance was a separate and severable action. See Civil Rule...