State ex rel. Riefling v. Sale
| Decision Date | 30 December 1910 |
| Citation | 133 S.W. 119,153 Mo.App. 273 |
| Parties | STATE OF MISSOURI ex rel. GEO. B. RIEFLING, v. HON. MOSES N. SALE, Judge, Respondent |
| Court | Missouri Court of Appeals |
PEREMPTORY WRIT AWARDED.
STATEMENT--This is an original proceeding by mandamus begun in this court the purpose of which is to compel the respondent, the Honorable Moses N. Sale, judge of Division No. 5 of the circuit court of the city of St. Louis, to take cognizance of, consider, determine and decide on its merits, a certain intervening petition, filed by relator, George B. Riefling in the suit of Francis Hemm v. Richard F. Juede.
From August 31, 1907 to July 20, 1908, Francis Hemm and Richard F Juede were in partnership, carrying on a retail drug business in the city of St. Louis. On July 15, 1908, relator commenced suit against Juede in the circuit court of said city to recover damages for personal injuries sustained through the negligence of Juede, acting as a member of said firm, in compounding and filling a physician's prescription. Subsequently, on July 20, 1908, Hemm brought suit in said circuit court against Juede to dissolve the partnership, and such proceedings were had therein that on August 3, 1908, the partnership was dissolved and a receiver was appointed and ordered to take charge and dispose of the assets of the partnership and distribute the proceeds, after deducting the costs, equally between the partners. On September 26, 1908, the receiver filed a report, showing that he had paid the debts of the partnership aggregating $ 1178.25, and that with the receivership expenses deducted, he still had in his hands $ 6452.38. On September 30, 1908, relator filed an amended petition in the damage suit, making Richard F. Juede and Francis Hemm, doing business under the style and firm name of Hemm & Juede, parties defendant, and thereafter on the same day relator filed a motion in the suit of Hemm v. Juede praying leave to join the receiver as a party defendant in the damage suit. On February 1, 1909, the suit of Hemm v. Juede was transferred from Division No. 7, Judge Kinsey presiding, to Division No. 5, Judge Sale presiding, where the damage suit was pending. On January 16, 1909, Juede filed a voluntary petition in bankruptcy in the District Court of the United States, and was adjudged a bankrupt. On February 2, 1909, Hemm filed in his suit against Juede a motion praying for an order directing and instructing the receiver to retain all money in his possession as receiver of the assets of the firm of Hemm & Juede until further order of the court, and praying that the receivership should continue until such time as the damage suit should be determined. On February 11, 1909, the trustee in bankruptcy of Juede filed a petition in the suit of Hemm v. Juede praying an order on the receiver to turn over to him $ 3295.28, being Juede's half of the partnership assets. On July 6, 1909, in the suit of Hemm v. Juede the motion of Hemm to continue the receivership, etc., and the petition of relator for leave to join the receiver as party defendant in the damage suit were overruled, and the petition of the trustee in bankruptcy for an order on the receiver to turn over to him Juede's half of the partnership assets was granted, and it was ordered therein that after the filing of proper vouchers the receiver should stand discharged. The court made no order at that time respecting the interest of Francis Hemm in the partnership assets and has made no such order since. After an unsuccessful motion for a new trial, Hemm, in the case of Hemm v. Juede, on July 19, 1909, duly took, and was duly allowed, an appeal to the St. Louis Court of Appeals, from the action of the court in granting, on July 9, 1909, the petition of the trustee in bankruptcy for an order to turn over Juede's half of the partnership assets, and said appeal is now pending in this court. On February 17, 1910, relator obtained judgment in the damage suit against Francis Hemm and Richard F. Juede, as partners, for $ 5500 and costs, from which judgment Juede has duly prosecuted his appeal to the St. Louis Court of Appeals, and it is now pending there, but Juede has given no appeal bond. On April 26, 1910, after the term at which the petition of the trustee in bankruptcy was granted and Hemm's appeal therefrom had been allowed, relator filed an intervening petition in the suit of Hemm v. Juede, stating facts substantially as above set forth and alleging that relator had had execution issued on his judgment but could find no property of Hemm or Juede on which to levy, and that the only property which either of them had, was the partnership assets, in the hands of the receiver, and that unless the court would order the receiver to pay the judgment out of said assets, relator will be unable to collect his judgment. That all the debts of the firm of Hemm and Juede, except relator's, had been paid. The said intervening petition concluded with a prayer that the court set aside the order made July 8, 1909, directing the receiver to turn over half of the partnership assets to the trustee in bankruptcy, and to make an order directing the receiver to pay to relator the amount of his judgment out of the partnership assets in his hands. Upon said petition coming up for hearing the respondent judge stated that as, on July 19, 1909, an appeal had been allowed Hemm in the cause to this court, and the cause was then pending here, his court had no jurisdiction to pass on the petition until the cause shall have been remanded. He declined, therefore, to consider said intervening petition until such time as the circuit court again acquired jurisdiction.
Then followed the present application for a mandamus as first above noted. An alternative writ was issued by this court to which return was duly made at the appointed time, setting forth facts substantially as aforesaid, whereupon relator moved for a peremptory writ.
Peremptory writ awarded.
Taylor R. Young and Daniel Dillon for relator.
(1) On a motion for peremptory writ in a case like this, the facts alleged in the petition for the writ and the facts alleged in the return and not denied are considered admitted. State ex rel. v. Brown, 205 Mo. 620. (2) When a partnership becomes insolvent or goes into bankruptcy, those having claims against the partnership have a priority as against the assets of the partnership over those having claims against the individual members of the partnership. Parsons on Partnership (4 Ed.), sec. 382; Shumaker on Partnership, pp. 354-358; Sundley v. Faris, 103 Mo. 79; Phelps v. McNeely, 66 Mo. 558. (3) Property in the hands of a receiver is in the custody and control of the court for the benefit of whoever may eventually establish a right to it; the court itself, through its receiver, has control of the property. The receiver is no party to the litigation, but is only the officer of the court, and his possession is the possession of the court. State ex rel. v. Reynolds, 209 Mo. 173; High on Receivers, sec. 4, chap. 1, and secs. 176, 177 and 78, chap. 7; 34 Cyc., pp. 185, 187, 242 and 243; Harding v. Nettleton, 86 Mo. 662
Buder & Buder and Byron F. Babbitt for respondent.
(1) The pendency of another action or proceeding involving the same question will prevent the issue of a writ of mandamus. 26 Cyc., pp. 184-185. (2) We further submit that respondent was without jurisdiction to hear and pass upon said intervening petition, for the reason that the term at which the appeal in the case of Hemm v. Juede was taken had lapsed long prior to the filing of relator's intervening petition therein. State ex rel. v. Gates, 143 Mo. 63; Crawford v. Railroad, 171 Mo. 79. (3) Intervention ought not to be granted after the rendition of final decree, and after final decree mandamus ought not to issue therefor. 16 Cyc., p. 202; U. S. v. Northern Securities Co., 128 F. Rep. 808; Ex parte Branch, 53 Ala. 140; Carey v. Brown, 58 Cal. 180; Ward v. Clark, 6 Wis. 509; Morton v. Supreme Council, 100 Mo.App. 76. (4) This relator has an adequate remedy at law in that his claim is provable in bankruptcy and in the bankruptcy court. Thompkins, Admr. v. Williams, 23 Am. Bank Rep. 886. (5) A demand created by the fraud of defendant whereby he procures money from the plaintiff, is not a debt, neither is plaintiff a creditor. Sunday v. Galvin, 55 Mo.App. 412; Ryles-Wilson Co. v. Shelley Mfg. Co., 93 Mo.App. 178; Steele v. Brazier, 123 S.W. 480; Estate Co. v. Arms Co., 110 Mo.App. 406-412; Grafton v. Ferry Co., 19 N.Y.S. 968; Whitcomb v. Davenport, 63 Vermont 656; Bolden v. Jenson, 69 F. 745; Powell v. Railroad, 36 F. Rep. 726; Child v. Boston, 137 Mass. 516.
Original Proceeding by Mandamus.
CAULFIELD, J. (after stating the facts).
The circuit court having refused to entertain relator's intervening petition on the ground of an alleged want of jurisdiction, it is the duty of this court to determine whether the circuit court has such jurisdiction.
It is undoubtedly the rule that an appeal divests the jurisdiction of the trial court and places it in the appellate court. [Brill v. Meek, 20 Mo. 358; Ladd v Couzins, 35 Mo. 513; Oberkoetter v. Luebbering, 4 Mo.App. 481; Burgess v. O'Donoghue, 90 Mo. 299, 2 S.W. 303; State ex rel. v. Gates, 143 Mo. 63, 69, 44 S.W. 739; Burdett v. Dale, 95 Mo.App. 511, 514, 69 S.W. 480; Story and Clark Piano Co. v. Gibbons, 96 Mo.App. 218, 221, 70 S.W. 168; Donnell v. Wright, 199 Mo. 304, 313, 97 S.W. 928.] And in stating the rule our courts have used the broadest language. Thus it was said at an early day, "when an appeal has once been granted, the power over the subject is functus officio and cannot be exercised a second time." [Brill v. Meek, 20 Mo. 358.] "When an appeal is...
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