State ex rel. Priest v. Calhoun

• Decision Date: 24 November 1920
• Parties: STATE ex rel. GEORGE T. PRIEST, Relator, v. JOHN W. CALHOUN, Judge, Respondent
• Court: Missouri Court of Appeals

226 S.W. 329

207 Mo.App. 149

STATE ex rel. GEORGE T. PRIEST, Relator, v. JOHN W. CALHOUN, Judge, Respondent

Court of Appeals of Missouri, St. Louis

November 24, 1920

Preliminary rule made absolute.

George T. Priest, pro se.

Smith & Pearcy, Leo S. Rassieur, and William H. Schaumberg for respondent.

BECKER J. Reynolds, P. J., and Allen, J., concur.

OPINION

ORIGINAL PROCEEDING IN PROHIBITION.

BECKER J.

This is an original proceeding in prohibition seeking to restrain and enjoin the defendant judge from proceeding further in the case of John H. Conrades, et al., v. Blue Bird Appliance Company pending in the circuit court of the city of St. Louis, in which case the respondent judge has heretofore, at the relation of said Conrades, et al., appointed a receiver for the defendant, Blue Bird Appliance Company. A preliminary rule in prohibition has heretofore been issued in this case.

It appears that on May 25, 1920, John H. Conrades, Thomas Mellow and Ben J. Brinkmann were by the circuit court of the city of St. Louis appointed receivers of a certain corporation known as the Blue Bird Manufacturing Company, and that said receivers took charge of all of the assets of the said company under their powers as receivers of said company, and that amongst said assets were fifty-one per cent of all of the capital stock of a corporation known as the Blue Bird Appliance Company, a Missouri corporation.

On June 19, 1920, said John H. Conrades, Thomas Mellow and Ben G. Brinkmann, as receivers of the said Blue Bird Manufacturing Company, and as such owners of fifty-one per cent of the capital stock of the Blue Bird Appliance Company, filed a suit in the circuit court of the city of St. Louis wherein said receivers asked for the appointment of a receiver for the said Blue Bird Appliance Company, and upon the same day a temporary receiver was duly appointed and qualified. Thereafter the court, on August 20, 1920, appointed a permanent receiver upon the giving of a bond in the sum of $ 25,000, which bond was on the same day filed, presented and approved by the court, since which time the judge of the circuit court, respondent here, has retained jurisdiction of the said case continuously, and the receiver, since the date of his appointment as permanent receiver and up to the time of the filing of the application for a writ of prohibition herein, has continued in charge of and in control of the property of the said Blue Bird Appliance Company.

The main allegations set out in the petition of the said Conrades, et al., receivers of the Blue Bird Manufacturing Company, and as such holders of fifty-one per cent of the capital stock of the Blue Bird Appliance Company, in which petition the appointment of a receiver for the said Blue Bird Appliance Company is sought (as appears from the respondent's return herein) are:

"A. The plaintiffs in said cause were stockholders owning $ 5100, par value of the capital stock of the defendant corporation whose total capital was $ 10,000, and were also creditors to the extent of approximately $ 450,000.

"B. That the assets of the defendant corporation located in various states were being subjected to attachments suits, levies and other forms of waste, and that all of said assets were in danger of being utterly destroyed and dissipated.

"C. That all of the directors, officers, managers and executives of the defendant company had on the 17th day of June, 1920, resigned and abandoned the property and assets of the defendant corporation, and defendant corporation was without any officers, directors, managers or executives.

"D. That unless a receiver were appointed by the court, the value of plaintiffs' stock in the defendant corporation would be utterly destroyed, and the value of plaintiffs' claim would be utterly destroyed.

"E. The prayer was for the appointment of a temporary receiver, on inquiry by the court into all the facts alleged, the appointment of a permanent receiver and for all general and equitable relief that to the court under the circumstances might seem meet and proper."

On October 19, 1920, a petition in bankruptcy was filed in the United States District Court for the Eastern District of Missouri by certain creditors against the Blue Bird Appliance Company. One of the grounds of alleged bankruptcy of the said Appliance Company set forth in the bankruptcy petition is the appointment of a receiver for the said Blue Bird Appliance Company in the cause of Conrades, et al., v. Blue Bird Appliance Company, above mentioned.

The facts as outlined above appear from a reading of the relator's application for a writ of prohibition herein. Such application contains the further averment that the relator is a creditor of the said Blue Bird Appliance Company in the principal sum of $ 7500; that by the exercise of due diligence he has attempted to perfect a lien by attachment proceedings in favor of the debt owed him by the Blue Bird Appliance Company; that the proceedings instituted by the creditors of the Blue Bird Appliance Company in the United States District Court for the Eastern District of Missouri were designated by said creditors to defeat said lien of relator. Relator further avers that he is interested in defeating the proceedings in bankruptcy above referred to, but that he cannot, in said bankruptcy proceedings, attack the appointment of a receiver for the Blue Bird Appliance Company by the said circuit judge for such attack would be collateral and that the only course left open to him is to question the jurisdiction of said circuit judge in said cause in direct proceedings. Relator further avers that the said circuit judge was without authority and jurisdiction in the said suit of Conrades, et al., v. Blue Bird Appliance Company, to appoint a receiver for the Blue Bird Appliance Company, and that said want and lack of jurisdiction appears upon the face of the petition filed in said cause of said Conrades, et al., and that by reason thereof the relator is entitled to a writ of prohibition directed to the said circuit judge, restraining and enjoining him, the said judge, from proceeding in said cause of Conrades, et al., v. Blue Bird Appliance Company.

Among the matters set up in respondent's return to the preliminary rule heretofore issued herein to show cause why a permanent writ of prohibition should not be issued, is found an epitome of the material allegations in the petition filed by plaintiff in the case of Conrades, et al., v. Blue Bird Appliance Company, which epitome we have already hereinabove set out. The return further shows that the relator herein is not a party to the said suit of Conrades, et al., v. Blue Bird Appliance Company; that the relator had been an officer and director of the said Blue Bird Appliance Company up to the 18th day of June, 1920, on which date the said relator together with the other officers and directors of the company resigned as officers and directors; that the relator in addition to being an officer and director of the Appliance Company had also acted as one of the counsel for Conrades, et al., as receivers for the Blue Bird Manufacturing Company from the date of their appointment on the 25th day of May, 1920, until the 18th day of June, 1920, on which date he resigned as such counsel in open court; that on the following day the relator filed a suit in attachment against the Appliance Company in the State of Massachusetts and on the 25th day of June, 1920, filed a second suit in attachment in the State of Ohio based on the same claim for services. The return further shows that on the 18th and 19th days of June, 1920, and for a long time prior thereto, the stockholders in the Blue Bird Manufacturing Company were but five in number, namely, F. E. Hazard, I. A. Shulherr, R. G. Yost, the relator George T. Priest (holder of one share of stock) and the Blue Bird Manufacturing Company (holder of fifty-one per cent of the stock of the company), and that said persons and said corporation comprise all of the stockholders of the Appliance Company up to the present time; that from the 25th day of May, 1920 on, and until the 18th and 19th days of June, 1920, the certificates of stock in the Blue Bird Appliance Company belonging to the Blue Bird Manufacturing Company were in the custody of and belonged to the said John H. Conrades, Thomas Mellow and Ben G. Brinkmann, receivers of the said Blue Bird Manufacturing Company, plaintiffs in the receivership action against the Appliance Company.

The return further sets up that Hazard, Schulherr and Yost immediately after resigning as officers and directors of the Blue Bird Appliance Company left the city of St. Louis, leaving as the only stockholders of the Blue Bird Appliance Company in St. Louis, the relator and the said Conrades, Mellow and Brinkmann, receivers of the Blue Bird Manufacturing Company. The return further sets up that there has been filed in the receivership matter below two intervening petitions by creditors aggregating over $ 20.000, and that the receiver appointed in said suit has in his control assets of a "fair money value of $ 500,000."

In light of these facts respondent urges that the circuit court rightfully assumed jurisdiction in the first instance and has been rightfully exercising jurisdiction ever since, and that the preliminary rule heretofore issued herein should be discharged.

I.

Respondent here urges that the relator not being a party to the suit below in which he is seeking to obtain a writ of prohibition restraining the trial judge from proceeding further therein has no standing in this court.

This question has long since been determined adversely to respondent's contention. The fact that the relator is a stranger to the action does not bar him from his...