State ex rel. Chicago Cardinals Football Club, Inc. v. Nangle

• Decision Date: 08 July 1963
• Docket Number: No. 49858,49858
• Citation: 369 S.W.2d 167
• Parties: The STATE of Missouri, at the Relation of the CHICAGO CARDINALS FOOTBALL CLUB, INC., d/b/a St. Louis Football Cardinals, an Illinois Corporation, William V. Bidwill, Charles W. Bidwill, Jr., Charles H. Shea, and Arch Wolfe, Relators, v. The Honorable James F. NANGLE, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent. . En Banc
• Court: Missouri Supreme Court

Page 167

369 S.W.2d 167

The STATE of Missouri, at the Relation of the CHICAGO

CARDINALS FOOTBALL CLUB, INC., d/b/a St. Louis Football

Cardinals, an Illinois Corporation, William V. Bidwill, Charles W. Bidwill, Jr., Charles H. Shea, and Arch Wolfe, Relators, v. The Honorable James F. NANGLE, Judge of the Circuit Court of

the City of St. Louis, State of Missouri, Respondent.

No. 49858.

Supreme Court of Missouri. En Banc.

July 8, 1963.

Foster, Vogel & Stroh, St. Louis, Hendren & Andrae, Jefferson City, Robert M. Ahern, Thomas, D. Nash, Jr., Chicago, Ill., for relators.

Martin A. Rosenberg, St. Louis, Barnabas F. Sears and John E. Dreyer, Chicago, Ill., for respondent.

HYDE, Judge.

This is an original proceeding in prohibition to prevent respondent from exercising jurisdiction in the case of Walter H. S. Wolfner v. The Chicago Cardinals Football Club, Inc., d/b/a The St. Louis Football Cardinals et al. and particularly from interference in the affairs of the corporation through a trustee or receiver appointed by him. On issuance of our preliminary writ we ordered that the trustee designated by respondent restore to the officers and agents of the corporation 'all corporate property and assets seized by him' and that 'he refrain from further interference with the affairs of the corporation until further order of this court and that the officers and agents of said corporation until further order of this court are authorized to continue to exercise all powers and duties vested in them to the same extent if said Circuit Court judgment of November 19, 1962, had not been entered.'

Walter Wolfner was the husband of Violet Bidwill Wolfner, who died January 29, 1962. Wolfner's petition in the Circuit Court, entitled 'Petition to Sequester and Preserve Assets, for Injunction, etc.' stated facts hereinafter set out. At her death, Mrs. Wolfner owned 82% of the stock of the corporation, defendants Charles W. Bidwill, Jr., and William V. Bidwill each owned 4%, and Joseph Griesedieck, Jr., owned 10%. The corporation is an Illinois corporation doing business exclusively in Missouri, where its principal office is located, operating a National League professional football team. Mrs. Wolfner was a resident of Illinois, as is Wolfner and Charles W. Bidwill, Jr., William V. Bidwill and Joseph Griesedieck, Jr., are residents of Missouri, as are defendants Shea and Wolfe. The other defendants (collateral heirs of Mrs. Bidwill) are residents of Illinois. Defendants Charles W. Bidwill, Jr., and William V. Bidwill were adopted by Mrs. Bidwill and her former husband, Charles W. Bidwill, deceased, by adoption decrees entered in Cook County, Illinois, in 1928 and 1933. Mrs. Wolfner's will, probated in Cook County, Illinois, gave Wolfner a life estate in certain oil wells in Oklahoma, and gave the remainder of her estate to her two sons, Charles and William Bidwill, and appointed them executors to serve without bond. Only Charles qualified because William was not a resident of Illinois. Wolfner appealed from the admission of the will to probate and that appeal was pending at the time of the trial. The order admitting it has now since been affirmed by the Supreme Court of Illinois. In re Wolfner's Estate, 27 Ill.2d 221, 188 N.E.2d 712. Wolfner has renounced the will and also filed in the probate court a petition, alleging the adoptions of Charles and William Bidwill were void, seeking to vacate the order declaring them heirs and seeking to be appointed an Administrator to Collect, said to be similar to our administrator pendente lite. The probate court sustained the validity of the adoption but Wolfner appealed and this appeal was pending in the Illinois Appellate Court, First District, at the time of the trial. Charles W. Bidwill, Jr., filed a motion to dismiss Wolfner's renunciation on the ground that he had no interest because, on July 8, 1954, a postnuptial settlement had been entered into by Wolfner and his wife. This was still pending in the probate court as likewise was Wolfner's application for appointment as Administrator to Collect.

From 1951 until Mrs. Wolfner's death, Wolfner was the managing director of the corporation signing all contracts with players and determining its policies, serving without salary since 1956, and bringing about the moving of the team from Chicago to St. Louis in 1960, which has resulted in profitable operations. Charles and William Bidwill have been president and vice presdent, respectively, since 1951, at which time Charles was in college and William in prep school; and they have never had any executive functions and are inexperienced in the operation of a professional football team. Mrs. Wolfner's will was filed for probate February 9, 1962, and after hearing was admitted to probate on May 4th. Wolfner filed his notice of appeal on May 10th but on May 7th Charles Bidwill, Jr., voted the stock belonging to the estate (which was necessary to constitute a quorum) at a special stockholders' meeting at which Wolfner was voted out as a director and his office of managing director was abolished. The four individual relators herein were elected directors. Previously, soon after the death of Mrs. Wolfner these four had assumed management and control of the corporation, announced they would run the team, employed a new coach, moved to more sumptuous offices and usurped the duties of Wolfner as managing director. The Bidwills also barred Wolfner's entry to Mrs. Wolfner's home in Cook County, Illinois, and her apartment in Miami Beach, Florida. All these acts were alleged to have been pursuant to a conspiracy among them to oust Wolfner from his position as managing director, to deprive him of his lawful share as a surviving spouse and to embarrass, humiliate and discredit him. The petition also announced Wolfner's intent to contest the will if its admission to probate was upheld and stated that at least three years would elapse before such litigation could be concluded. It is claimed that this action is an equitable action in the nature of a bill quia timet. See 2 Story's Equity Jurisprudence (14th Ed.) 525, Chap. 24. Other allegations of Wolfner's petition will be referred to infra.

The Circuit Court found all issues in favor of Wolfner; decreed that the corporation be sequestered by the Court until it be finally judicially determined who is entitled to the stock interest of Mrs. Wolfner therein; ordered that the individual relators as purported officers and directors of the corporation be enjoined from exercising any duties of their offices and from transacting any business of the corporation; and appointed a trustee 'with full power to husband, manage, operate and preserve said defendant corporation and its assets, business and affairs and to prevent waste thereof, all under the supervision and direction of this Court until it be finally judicially determined who is the person or persons lawfully entitled' to the stock interest of Mrs. Wolfner.

Relators' petition in prohibition challenges the jurisdiction of the respondent on three grounds: (1) that the petition for the appointment of a receiver or trustee is not ancillary to any main relief sought by the plaintiff in the Circuit Court, but is the primary relief sought; (2) that the plaintiff in the Circuit Court did not have any right to or interest in the corporate relator or its assets sufficient to support his petition for the appointment of a receiver or trustee; and (3) that plaintiff's petition on its face showed that the stock owned by Violet Bidwill Wolfner was in custodia legis in the Probate Court of Cook County, Illinois, and therefore the Circuit Court of the City of St. Louis had no jurisdiction to appoint a receiver or trustee for the corporate relator.

The prohibition petition alleges the facts about the status and relationship of the parties, ownership of stock in the corporation and the probate proceedings and other litigation pending. Copies of Wolfner's petition in the Circuit Court, other pleadings and the judgment therein and the postnuptial agreement were attached as exhibits. Respondents' return admits the pendency of these proceedings but makes certain affirmative allegations concerning them and their effect to which reference will be made, infra. The return denies allegations of the petition not admitted including allegations that Charles and William Bidwill were adopted, their ownership of corporate stock and the validity of the postnuptial agreement. Relators filed a reply which they say 'may be treated by this Court as a motion for judgment on the pleadings so that the case will be at issue.' We therefore, disregard any new matter or denials in the reply. (See State ex rel. Pontiac Realty Co. v. Nangle, Mo.Sup., 315 S.W.2d 214, 215, and cases cited.)

Relators contend that the relief sought by Wolfner's petition was only the appointment of a receiver and that respondent had no jurisdiction to do so because appointment of a receiver must be ancillary to an action for some other purpose and there is no such thing as a plain receivership action, citing the following cases that have established this rule: State ex rel. Merriam v. Ross, 122 Mo. 435, 25 S.W. 947, 23 L.R.A. 534; Price v. Bankers' Trust Co., 178 S.W. 745 (Mo.Sup.); State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; State ex rel. Lund & Sager v. Mulloy, 330 Mo. 333, 49 S.W.2d 1; Laumeier v. Sun-Ray Products Co., 330 Mo. 542, 50 S.W.2d 640, 84 A.L.R. 1435; State ex rel. Pettibone v. Mulloy, 330 Mo. 1084, 52 S.W.2d 402; Monticello Building Corp. v. Monticello Investment Co., 330 Mo. 1128, 52 S.W.2d 545; United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 762. Relator also says 'sequestration' is a process and not a form of action, no longer vital in Missouri, so that appointment of a receiver could not be ancillary to sequestration, citing State ex rel. Couplin v. Hostetter, 344 Mo. 770...