State ex rel. Hettrick Mfg. Co. v. Lyon

• Decision Date: 31 December 1928
• Docket Number: No. 28739.,28739.
• Citation: 12 S.W.2d 447
• Parties: THE STATE EX REL. HETTRICK MANUFACTURING COMPANY and MOLDED WOOD PRODUCTS, INCORPORATED, v. A. STANFORD LYON, Judge of Circuit Court of Jackson County.
• Court: Missouri Supreme Court

12 S.W.2d 447

THE STATE EX REL. HETTRICK MANUFACTURING COMPANY and MOLDED WOOD PRODUCTS, INCORPORATED, v. A. STANFORD LYON, Judge of Circuit Court of Jackson County.

No. 28739.

Supreme Court of Missouri. Court en Banc.

December 31, 1928.

Prohibition.

PRELIMINARY RULE DISCHARGED AND PROCEEDING DISMISSED.

Edwards, Kramer & Edwards and Hackney & Welch for relators.

(1) The Circuit Court of Jackson County acquired no jurisdiction to appoint a receiver at the instance of the plaintiff below, who was a general creditor having only a claim at law and who had a full, adequate and complete remedy at law for the recovery of its debt. (a) The petition for a receiver disclosing no lien on, or legal or equitable right or interest of the plaintiff in, the property of the defendant company, there was and could be, under the allegations of the petition, no controversy between the plaintiff and the defendant as to the right to the possession of the defendant's property; nor as to the subjection of any specific property to the payment of plaintiff's claim. Therefore, the petition did not state facts sufficient to bring the property of the defendant corporation within the jurisdiction of the circuit court so as to justify the appointment of a receiver. Miller Bros. v. Perkins, 154 Mo. 629; State ex rel. v. Ross, 122 Mo. 435; Price v. Bankers Trust Co., 178 S.W. 745; State ex rel. v. Reynolds, 289 Mo. 506; State ex rel. v. Calhoun, 207 Mo. App. 149; Sedberry v. Gwynn, 282 Mo. 648. (b) The plaintiff's petition in the receivership case disclosed that the plaintiff had a full, adequate and complete remedy at law for the recovery of its debt, and the petition stated no ground for invoking the equitable jurisdiction of the court. (2) The A.J. Stephens Company, defendant in the action below, had no right to have the court appoint a receiver for it on its application averring the facts alleged in the plaintiff's petition as ground for the receivership. Jones v. Schafer Bros. Co., 187 Mo. App. 597; State ex rel. v. Ross, 122 Mo. 435; State ex rel. v. Calhoun, 207 Mo. App. 149; State ex rel. v. Reynolds, 289 Mo. 506. While the answer of the defendant corporation filed on the same day the petition for receiver was filed, denied the allegations of the plaintiff's petition, yet the alacrity with which the defendant entered its appearance and filed this answer, and the failure of the defendant to take any steps seeking to revoke the order appointing a receiver, all show conclusively that the petition was filed by plaintiff not to conserve any of its rights, but for the purpose of trying to benefit the defendant by having a receiver appointed to hold its property for an indefinite length of time from the reach of creditors. (3) The amended petition filed on January 17, 1928, did not validate the appointment of the receiver on January 4th, nor did it furnish any additional grounds for such appointment. The allegations of this amended petition were wholly insufficient to make out a case for the appointment of a receiver under Secs. 10169, 10170 and 10171, R.S. 1919. (4) The bankruptcy proceedings set up in the return show no justification for the appointment much less the continuation of the state receivership in question.

Nourse & Bell and W.H.H. Piatt for respondent.

ATWOOD, J.

This is an original proceeding in prohibition attacking the jurisdiction of respondent as judge of the Jackson County Circuit Court to appoint Walter H. Maloney as receiver for the A.J. Stephens Company at the instance of the Firestone Tire & Rubber Company. Our preliminary rule was issued, respondent filed return, and relators thereupon filed motion for judgment on the pleadings.

It appears from the above pleadings that on January 4, 1928, Firestone Tire & Rubber Company, a general unsecured creditor of the A.J. Stephens Company, filed a petition in the Circuit Court of Jackson County seeking to recover from the latter company the purchase price of certain goods, wares and merchandise alleged to have been sold to said company, and asking for the appointment of a receiver pendente lite; that defendant, A J. Stephens Company, filed answer admitting its incorporation, denying all other allegations, and reserving the right to answer further; that on the same day the said court made an order appointing Walter H. Maloney as receiver, who thereupon duly qualified and took charge of the property of said company; that on the same day said court made an order allowing plaintiff in said cause to file its amended petition to conform with the proof which had been presented on the hearing that day had, and said amended petition was thereafter on January 17, 1928, duly filed; that defendant filed answer admitting its incorporation, that its assets far exceeded its liabilities and that the rumors of bankruptcy threatened and carried out were true, but denying each and every other allegation; that on January 4, 1928, there was filed in the District Court of the United States for the Western Division of the Western District of Missouri, a petition in involuntary bankruptcy against the said A.J. Stephens Company, and thereafter, on January 5, 1928, J.F. Charlesworth was appointed receiver in said bankruptcy proceedings; that on January 11, 1928, the Molded Wood Products, Incorporated, one of the relators herein, together with other creditors of said company, filed an intervening petition in bankruptcy and thereafter requested that J.F. Charlesworth be ousted; that on January 16, 1928, H.H. McCluer was appointed...