State ex rel. Heckel v. Klein

• Decision Date: 02 March 1897
• Citation: 39 S.W. 272,137 Mo. 673
• Parties: State ex rel. Heckel et al. v. Klein, Judge, etc
• Court: Missouri Supreme Court

39 S.W. 272

137 Mo. 673

State ex rel. Heckel et al. v. Klein, Judge, etc

Supreme Court of Missouri

March 2, 1897

This a proceeding by mandamus. The object of it is to compel the defendant, as circuit judge, to approve a bond offered by relators as a stay bond on an appeal in the case of Vogelsang et al. v. Heckel Hardware Company et al. The pleadings show the following facts admitted:

Messrs Vogelsang and Gardner, as stockholders of the Heckel Hardware Company, filed a petition in the circuit court in St. Louis against that company, and against Messrs. Heckel and Randolph (relators in the case at bar) Jesse T. Baker and Charles Sulz, the St. Louis National Bank and the Randolph-Heckel Hardware Company.

The petition charged in substance that Heckel, being president and Randolph, secretary and treasurer, and both directors, of the Heckel Hardware Company, a corporation, conspired together and devised a scheme to fraudulently transfer and convert the assets of the company to the secret use of themselves, their relatives and preferred creditors; that in furtherance of this scheme they made a written transfer of these assets to defendant Baker for the sum of $ 52,000, to which transfer they obtained the assent of the other three directors of the company; that this transfer was made upon condition, among others, that a debt of $ 20,000 due to the St. Louis National Bank should be paid; and that the rest of the $ 52,000 should be used for the benefit of Heckel and Randolph; that in pursuance of this scheme the assets were ostensibly delivered to Baker, but really remained in possession of Heckel and Randolph; that they were subsequently transferred by Baker to the Randolph-Heckel Hardware Company, a corporation consisting of Messrs Randolph and Heckel and Sulz, who (in the name of this latter corporation) were proceeding to dispose of and convert to their own use all that remained of these assets.

The petition prayed that the Heckel Hardware Company be dissolved; that Heckel and Randolph be removed from their respective offices therein; that they be compelled to account for their misconduct; that a receiver be appointed; that all the defendants be required to account for the money and property of the company that came into their hands; that the receiver take charge of the remaining assets and institute and prosecute all needful suits at law or in equity against the defendants and others for the recovery of the converted assets, alleged to be worth at least $ 75,000.

To this petition defendants answered separately, denying the fraud imputed to them, averring that on the contrary Heckel and Randolph had assumed and paid debts of the Heckel Hardware Company to the amount of $ 26,000, and alleging that the plaintiffs did not, before bringing their suit, request the board of directors (a majority of whom were not alleged to be implicated in the frauds charged) to bring suit for the recovery of the assets said to have been converted.

The Vogelsang case was tried on the merits before Judge Klein, as circuit judge. He rendered a judgment dismissing the cause as against Baker, Sulz, and the bank; but he found the issues for plaintiffs as against Heckel, Randolph, and both of the hardware companies. He entered a judgment removing Heckel and Randolph from their offices in the Heckel Hardware Company appointed a receiver to take charge of all the business property, effects and books of that company, and to collect, sue for, and recover all debts and property of the company, and to demand and sue for an accounting for any property or assets wrongfully taken from it. The decree also ordered that Heckel, Randolph, and the Randolph-Heckel Hardware Company should at once deliver to the receiver all the books, deeds, documents, evidences of debt and files of the Heckel Hardware Company, and finally that plaintiffs recover their costs of Heckel, Randolph, and the Randolph-Heckel Hardware Company.

In due time Heckel and Randolph filed motions for new trial and in arrest. These were overruled February 15, 1896. They then filed a bill of exceptions, which was duly allowed, signed and filed. Thereafter, April 4, 1896, and in proper time, at the February term, they filed an affidavit for appeal, which was granted. On the same day they presented to Judge Klein, for approval, a bond in the sum of $ 500, conditioned as follows:

"The condition of the above obligation is such: That, whereas, George P. Heckel and Peter J. Randolph have appealed from the judgment rendered against them and in favor of Louis E. Vogelsang and Charles H. Gardner in the circuit court, city of St. Louis, for the sum of dollars and cents, together with costs.

"Now, if said appellants shall prosecute their appeal with due diligence, to a decision in the appellate court, and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court, city of St. Louis, to give, and if the judgment of said circuit court, or any part thereof, be affirmed, and said appellant shall comply with, and perform, the same, so far as it may be affirmed, and pay all damages and costs which may be awarded against them by any appellate court, then this obligation to be void, otherwise to remain in full force and effect."

Judge Klein refused to approve said bond because he held that it would, upon approval, operate as a supersedeas to the execution of the judgment, and that it was not sufficient in amount for that purpose.

Judge Klein did not, at the time of granting the appeal, by order of record fix the amount of the appeal bond, nor was he at any time (so far as this record shows) requested to do so. Later the relators perfected their appeal by filing a proper transcript of the record in the supreme court.

Prior to the tender of the bond, the receiver appointed by the court took possession of the books of the Heckel Hardware Company, and instituted five actions against a number of parties, seeking to recover of them about $ 16,400 upon allegations that the same had been diverted from the corporation.

In this condition of the case the pending application for mandamus was presented, an alternative writ awarded, return made, and the facts above mentioned developed by the pleadings in the supreme court.

All other material facts are mentioned in the opinion of the court.

Peremptory writ denied.

T. K. Skinker and Hiram J. Grover for relators.

(1) The bond offered was sufficient in amount. It was double the amount of the costs of both circuit and supreme court; and no more than $ 500 could be recovered on any bond that could have been given. R. S., sec. 2249; Nofsinger v. Hartnett, 84 Mo. 549; Schuster v. Weiss, 114 Mo. 158; Kountze v. Omaha Hotel Co., 107 U.S. 378; Bauer v. Cabanne, 105 Mo. 120; Cranor v. Reardon, 39 Mo.App. 306; Burgess v. Doble, 149 Mass. 256; McWilliams v. Morgan, 70 Ill. 62; Ex parte Hawks, 7 Cow. 492; Blanchin v. Steamer, 10 La. Ann. 345; State ex rel. v. The Judge, 20 La. Ann. 108; City Bank v. Bangs, 4 Paige, 285; In re Pierson's Executors, 13 Iowa 449; Stephens v. Shannon, 44 Ark. 178; Welch v. Cook, 7 How. Prac. 282; Wilkes v. Henry, 4 Sandf. Chan. 390; Roberts v. Jenkins, 80 Ky. 666; Roberts v. Cooper, 19 How. 373; Tyler on Ejectment, p. 838; R. S., secs. 4638, 4644. (2) Judge Klein not having fixed any other amount should have approved the bond tendered. State ex rel. v. Dillon, 98 Mo. 90.

Lubke & Muench for respondent.

(1) The trial court, even though there be no express money judgment is not limited to a mere recognizance for costs, when fixing the amount of an appeal bond in a case in which the decree involves other pecuniary results. Duggan v. Dillon, 98 Mo. 94; State ex rel. v. Dillon, 31 Mo.App. 535. (2) Should the court below approve a bond, however inadequate, its sufficiency is thereby conclusively established, and will not be drawn in question here. State ex rel. v. Dillon, 98 Mo. 90; Am. Brewing Co. v. Talbot, 135 Mo. 170; State ex rel. v. Hirzel, 137 Mo. 435. (3) Hence the necessity for requiring, in cases which involve large amounts, and in which it is sought to stay the hands of justice from saving large amounts about...