State ex rel. Fichtenkamm v. Gambs

• Decision Date: 31 October 1878
• Citation: 68 Mo. 289
• Parties: THE STATE ex rel. FICHTENKAMM, Appellant, v. GAMBS.
• Court: Missouri Supreme Court

68 Mo. 289

THE STATE ex rel. FICHTENKAMM, Appellant,

v.GAMBS.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Louis Circuit Court.--HON. JAS. K. KNIGHT, Judge.

Thos. Espy for appellant.

Dryden & Dryden and Pope & McGinnis amici curiae.

The first instance in which the office of receiver is alluded to in the legislation of this State is found in the practice act of 1849, which abolishes the distinction between actions at law and suits in equity. By article 10 of that act it is provided: “Sec. 1. Until the Legislature shall otherwise provide, the court may appoint receivers and direct the deposit of money or other thing in court, and grant the other provisional remedies now existing according to the present practice, except as otherwise provided in this act.” Laws of 1849, p. 86. Following that article in time, and in its suggestions, was the attachment law of 1855, by which it is provided: Sec. 37. “The court, or in vacation the judge may in a proper case, on the application of the plaintiff, appoint a receiver.” * * “Sec. 38. When notes, bills, books of account, accounts or other evidences of debts are attached, they * * shall be delivered to the receiver, who shall * * settle and collect the same. For that purpose he may commence and maintain actions on the same in his own name. ” * * R. S. 1855, pp. 249, 250, §§ 37, 38. The execution law of 1855 provided; “Section 18. All account books, accounts, notes, bills, bonds, certificates of deposit, and other evidences of debt, belonging to a person against whom an execution shall be issued, shall be liable to be seized, and when seized shall be placed in the hands of a suitable person, to be appointed by the court or judge thereof in vacation, as a receiver, who shall take the same oath, execute like bond, have and perform the same powers and duties, and be subject, he and his securities, to the same provisions and penalties in all respects as in the case of a receiver and his securities appointed in virtue of the act providing for suits by attachment.” R. S. 1855, p. 741. The act of 1855, regulating practice in civil cases, R. S. 1855, p. 1271, provided: “Sec. 53. The court shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money or other thing deposited in court, or that may be the subject of a tender, subject to the order of court. Sec. 54. Such receiver shall give bond and have the same powers and be subject to all the provisions, as far as they may be applicable, enjoined upon a receiver appointed in virtue of the law providing for suits by attachment.” These several provisions in the laws of 1855 are carried bodily, in the very same phraseology, into the revision of 1865, and are to-day in full force and parts of the law of the land. 1 Wag. Stat., 187, §§ 30, 31; Id., 606, § 20; 2 Wag. Stat., 1048, §§ 52, 53. See also 41, § art. 2, insurance law, Wag. Stat., 754.

The section of the practice act conferring the power to sue, Wag. Stat., § 53, p. 1048, it must be confessed, is awkwardly constructed, and expressed in ill-chosen words, but its intent is nevertheless apparent. It was a clumsy attempt to express the same meaning that was so well expressed by the 20th section of the execution law. 1 Wag. Stat., 606. The manifest object of the framer of the section was, in the interest of brevity, to adopt the law regulating suits by attachment, so far as that law had application to the subject, as the rule by which the powers, duties and responsibilities of the receiver should be determined.

The tendency of legislation and of the courts has been of late in favor of the power of the receiver to sue. Manlove v. Burger, 38 Ind. 211. Several courts of authority have held that the receiver may and ought to sue in his own name. Wray v. Jamison, 10 Hump. 186; Helm v. Littlejohn, 12 La. An. 298; Baker v. Cooper, 57 Me. 388; Lathrop v. Knapp, 57 Wis. 232.Kehr & Tittman and Philip Donahue for respondent.

The proposition that the receiver cannot sue in his own name is sustained by the following cases: Yeager v. Wallace, 44 Pa. St. 294; Justine v. Kerlin, 17 Ind. 588; Manlove v. Burger, 38 Ind. 211; King v. Cutts, 24 Wis. 627; Freeman v. Winchester, 18 Miss. 577; Battle v. Davis, 66 N. C. 252; Taylor v. Allen, 2 Atk. 213; Pitt v. Snowdin, 3 Atk. 750.

The cases to the contrary will, upon examination, prove to be founded upon statutes, or, as in Louisiana, upon the civil law. See also Marcedon v. State, 24 Ind. 370; Owens v. State, 25 Ind. 107; Chipman v. Sabbaton, 7 Paige Ch. 47; Ingersoll v. Cooper, 5 Black. 427; LaFallett v. Aikin, 36 Ind. 1.

HOUGH, J.

In a proceeding in the circuit court of St. Louis by one of the firm of Hoffelman & Franke, for a dissolution of the co-partnership, Charles A. Snell was appointed receiver of the assets of the firm, and on the 24th day of June, 1868, as such receiver, executed a bond for $20,000 to the State of Missouri, with Charles W. Horn and John Bruch as sureties. On the 2nd day of July, 1870, the relator was appointed receiver to succeed Snell, and under the direction of the court instituted the present action in his own name against the sureties on the bond of his predecessor. The defendants filed a demurrer to the petition, which was sustained, and final judgment entered thereon, from which the plaintiff has appealed.

1. STATUTORY APPOINTMENT OF RECEIVER: authority to sue.

Our statutes provide that every action shall be presented in the name of the real party in interest, except that an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, may sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. Gen. Stat. 1865, p. 651, §§ 2, 3. A trustee of an express trust is defined to be a person with whom, or in whose name, a contract is made for the benefit of another. Section 3, supra. The plaintiff is neither executor, administrator nor trustee of an express trust. Is he expressly authorized by statute to sue in his own name? Sections 52 and 53, chap. 169, Gen. Stat., relating to practice in civil cases, are as follows: “See. 52. The court shall have power to appoint a receiver whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money or other thing deposited in court, or that may be the subject of a tender, subject to the order of court.” “Sec. 53. Such receiver shall give bond, and have the same powers, and be subject to all the provisions, as far as they may be applicable, enjoined upon a receiver appointed in virtue of the law providing for suits by attachment.” The phraseology of the foregoing sections is somewhat wanting in perspicuity, but we think ourselves warranted in holding that they were intended to give a statutory authority for the appointment of receivers in all cases not otherwise specially provided for, and to prescribe their duties. Viewed in this light, the duty named in the 52nd section of keeping and preserving any money or other thing tendered or deposited in court, is in enlargement of the ordinary functions of receivers, and not expressive of their whole duty. If the receivers authorized by the 52nd section were intended to be restricted to the duties of simple bailees of money or property tendered or deposited, it was entirely superfluous to confer upon them the powers and duties of receivers in attachment, inasmuch as their special property as bailees would authorize them to maintain actions in their own names to recover such property when unlawfully taken from their possession, or damages for the conversion thereof, or for injury thereto. In order to determine, therefore, what other statutory powers have been conferred upon receivers, reference must be had to the law regulating the appointment of receivers in suits by attachment. The sections of that act material to the present inquiry, are as follows: “Sec. 30. The court, or in vacation, the judge may in a proper case, upon the application of the plaintiff, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall enter into bond to the State of Missouri, in such sum as the court or judge may direct, and with security approved by the court or judge, for the faithful performance of his duty as receiver, and that he will pay over all money, and account for all property which may come into his hands by virtue of his appointment, at such time and in such manner as the court may direct; this bond may be sued on in the name of the State, at the instance of and to the use of any party injured.” “Sec. 31. When notes, bills, books of account, accounts, or other evidences of debt, are attached, they shall not be subject to be retained upon the execution of a delivery bond, as hereinbefore provided, but shall be delivered to the receiver, who shall proceed with diligence to settle and collect the same. For that purpose he may commence and maintain actions on the same, in his own name, but in such actions no right of defense shall be impaired.” Sec. 32. The...