Stark v. Moffit, 30848

• Decision Date: 27 November 1961
• Docket Number: No. 30848,30848
• Citation: 352 S.W.2d 165
• Parties: Kenneth A. STARK, Plaintiff-Appellant, v. Corliss J. MOFFIT, Individually; J. H. Middleton, as Administrator D.B.N. C.T.A. of the Estate of Francis R. Moffit, Deceased; M. D. King Milling Company, a Corporation; The Farmers Bank of Bowling Green, Missouri, a Missouri Banking Corporation; Woodson K. Woods III; and Escrow Fund in Farmers Bank of Bowling Green, Missouri, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 165

352 S.W.2d 165

Kenneth A. STARK, Plaintiff-Appellant, v. Corliss J. MOFFIT, Individually; J. H. Middleton, as

Administrator D.B.N. C.T.A. of the Estate of Francis R.

Moffit, Deceased; M. D. King Milling Company, a Corporation;

The Farmers Bank of Bowling Green, Missouri, a Missouri

Banking Corporation; Woodson K. Woods III; and Escrow Fund

in Farmers Bank of Bowling Green, Missouri, Defendants-Respondents.

No. 30848.

St. Louis Court of Appeals, Missouri.

Nov. 27, 1961.

Van Matre & Van Matre, Everett S. Van Matre, for plaintiff-appellant.

McIlroy & Millan, Bowling Green, Edward A. Glenn, Louisiana, William M. Turpin, Bowling Green, Richard S. Bull and Doris J. Banta, St. Louis, for respondents.

DOERNER, Commissioner.

Plaintiff instituted this action in the Circuit Court on November 18, 1960, by which he sought to obtain payment of the sum of $4,425 out of a fund held in escrow by defendant Farmers Bank of Bowling Green, Missouri. One of the defendants below was Corliss J. Moffit, Executrix of the Estate of Francis R. Moffit, Deceased. On the day argument was heard in this court the resignation of the Executrix and the appointment of her successor was suggested, and J. H. Middleton, Administrator D.B.N. C.T.A. of said Estate has been substituted in her stead. In the trial court the defendants filed a joint motion to dismiss plaintiff's petition, on the grounds that prior to the filing of this suit plaintiff had filed a claim in the Probate Court of Pike County against the Estate of Francis R Moffit based upon the same cause of action. Subsequently the court entered a judgment sustaining defendants' motion and dismissing plaintiff's petition, "* * * on the ground of priority of jurisdiction in the Probate Court * * *" and plaintiff appealed.

As the court stated in its memorandum opinion, it is a well established rule that when a court of competent jurisdiction becomes possessed of a cause, its authority continues, subject only to the authority of a superior court, until the matter is finally and completely disposed of; and no court of concurrent jurisdiction may interfere with its action. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A.,N.S., 963; In re Gaebler's Estate, Mo.App., 248 S.W.2d 12. This rule rests upon comity and the necessity of securing proper and orderly administration of justice to prevent vexation, oppression, harassment and unnecessary litigation. Any other rule would result in a multiplicity of suits and create unseemly, expensive and dangerous conflicts in the securing and execution of judgments. State ex rel. Sullivan v. Reynolds, supra; In re Gaebler's Estate, supra. It is stated in the latter authority (248 S.W.2d l. c. p. 15) that 'In applying the rule above mentioned the proper test is: (1) whether there is a prior action between the same parties involving the same subject matter; and (2) whether the court in which the prior suit is pending has jurisdiction to render the particular relief sought in the subsequent action. Where the prior jurisdiction has terminated or is inadequate to afford the necessary relief, the assumption of jurisdiction by another court is permissible.'

Plaintiff contends on appeal that the court erred in dismissing his petition because this action concerned other parties and different theories of law and equity than did his claim in the Probate Court, and because the Probate Court could not grant the relief sought by plaintiff in the Circuit Court. The determination of these questions requires a comparison between plaintiff's petition in this action and the claim previously filed by him in the Probate Court.

In substance, plaintiff alleged in his petition that on April 8, 1959, plaintiff and the defendant M. D. Milling Company, a corporation, entered into a written contract with the deceased, Francis R. Moffit, involving the raising of hogs for the market. By the terms of the contract, pleaded in full in plaintiff's petition, plaintiff was to furnish Moffit with 60 meat type gilts, and 2 meat type boars, as breeding stock, the title to which was to remain in plaintiff. Moffit agreed to feed and care for the hogs and their offspring, and to purchase the required feed from the Milling Company. The parties further agreed that as rent for the use of the breeding stock plaintiff was to receive one gilt of his selection from each litter of pigs farrowed; that the Milling Company was to have a lien on all offspring, exclusive of the rental gilt, for the feed purchased by Moffit for the swine covered by the agreement; and that after the payment of the cost of the feed, Moffit was to receive the balance of the proceeds from the sale of the offspring.

Plaintiff further alleged in his petition that he had furnished the breeding stock to Moffit, as provided by said contract, and that at the time he died Moffit was in possession of 5 sows and 81 gilts belonging to plaintiff; that Corliss J. Moffit had been appointed executrix of his estate by the Probate Court of Pike County on or about March 15, 1960, and was still so serving; that against the will of the plaintiff said Corliss J. Moffit '* * * individually and as Executrix of the estate of Francis R. Moffit unlawfully converted said swine and sold them for cash against the will of plaintiff, and deposited said cash in escrow with the Farmers Bank of Bowling Green as hereinafter more fully set forth * * *'; and that plaintiff's swine were reasonably worth, and brought at the sale, the sum of $4,425, which was held in escrow by the defendant Bank.

Plaintiff's petition also set forth in full the terms of the escrow agreement, dated April 14, 1960, between the defendant Milling Company and the defendant Farmers Bank, as parties of the first part; Corliss J. Moffit, Executrix of Moffit's estate, as party of the second part; and the Farmers Bank, as escrow agent, party of the third part. After referring to the agreement between plaintiff and the Milling Company, and Moffit, it was stated in the escrow agreement that at the time of Moffit's death, on March 11, 1960, '* * * there was on hand hogs and off-springs from said gilts delivered by Kenneth A. Stark under the above mentioned agreement, * * *' and also there were on hand certain sows, boars and pigs upon which the Bank claimed a lien by virtue of a promissory note executed by Moffit, secured by a chattel mortgage; that Moffit was indebted to the Milling Company for purchases, for which it claimed a lien; and that the Executrix was unable to admit or deny the liens claimed by the Bank and the Milling Company. The substance of the agreement was that the Executrix was to sell all of the hogs for cash and to deposit the proceeds in escrow with the Bank, which was to hold the funds in escrow '* * * until the final determination of the liens and other claims on said hogs.' The escrow agreement further provided that the Executrix did not admit that the liens claimed by the Milling Company and the Bank were valid, and that '* * * in the event during the process of this administration it should be determined by proper Court Order or litigation that other persons have some claim on the proceeds of the said sale, or that the said Parties of the First Part are not entitled to all or any part of said proceeds, then in that event, the Party of the Third Part shall deliver the proceeds to the parties which are entitled to said proceeds, whether it be either or both of said First Parties or any other persons, in the proportion to which any of said persons are entitled.'

Plaintiff also alleged that to the extent of $4,425 the escrow fund was composed of the proceeds of the sale of plaintiff's hogs, which had been sold by the Executrix; that the defendants Corliss J. Moffit, individually and as Executrix, the Bank, the Milling Company, and Woodson K. Woods III, (Moffit's landlord), were each making a claim to the fund, but that neither of them had an interest therein except as to any portion of the fund in excess of $4,425; that Moffit's estate was believed to be insolvent and plaintiff would be greatly prejudiced by the placing of his property in the estate in that he would receive only a portion of said amount allowed as a claim against such estate; that to permit the estate to take plaintiff's property and convert it would be unconscionable and unjust, all to the end that the court, under its equitable powers, should afford plaintiff relief by decreeing that plaintiff was entitled to the escrow fund to the extent of $4,425; and that plaintiff had no adequate remedy at law. Plaintiff prayed that the defendants be enjoined from making any disposal or disposition of the escrow fund pending final disposition of the cause, and that the court enter a decree finding plaintiff the owner of $4,425 of the escrow fund and ordering the Bank to pay said sum to plaintiff out of the fund.

The joint motion of defendants to dismiss plaintiff's petition was supported by a copy of the claim plaintiff had previously filed in the Probate Court. In his claim plaintiff referred to the hog raising contract (which was attached to the claim as an exhibit); alleged that the plaintiff had placed the breeding stock with the deceased; that the Executrix was fully informed and had full knowledge of the arrangement; that at the time of the deceased's death he had on hand 65 sows and 81 gilts belonging to the plaintiff; that all of the sows except 5 were delivered to plaintiff, and that the 5 sows and 81 gilts not delivered were reasonably worth $4,425; and that said Corliss J. Moffit '* * * did engage in a course to defeat said Stark's property rights and accruals thereunder and did render her self (sic) liable personally and in representative capacity to the amount that there might not be a recovery from the Estate of deceased, if so, and the failure to deliver the said gilts in kind and number as set out herein and the 5 sows of said Stark; that said Corliss J....