State v. Bromschwig

• Decision Date: 10 January 1928
• Docket Number: No. 20151.,20151.
• Citation: 300 S.W. 1054
• Parties: STATE ex rel. BROMSCHWIG v. HARTMAN, Judge.
• Court: Missouri Court of Appeals

300 S.W. 1054

STATE ex rel. BROMSCHWIG v. HARTMAN, Judge.

No. 20151.

St. Louis Court of Appeals, Missouri.

January 10, 1928.

Rehearing Denied January 24, 1928.

Proceeding for writ of prohibition instituted by State, on relation of Clara Bromschwig, against M. Hartman, one of the Judges of the Eighth Judicial Circuit, presiding in Division No. 2, Circuit Court, City of St. Louis. Submitted on relator's motion for judgment on the pleadings. Preliminary rule discharged, and peremptory writ denied.

William L. Bohnenkamp, of St. Louis James T. Roberts, of St. Louis, of counsel), for relator.

John T. Fitzsimmons and Thomas S. Meng, both of St. Louis, for respondent.

SUTTON, C.

In this proceeding relator, Clara Bromschwig, prays for a writ of prohibition directed to respondent, prohibiting him from further assuming or exercising jurisdiction or taking a further action with respect to certain proceedings pending in his court. Relator filed her petition in this court on June 27, 1927. This court issued its preliminary rule to show cause on July 13, 1927. Respondent filed his return to the writ on October 12, 1927. The cause has been submitted here on motion of relator for judgment on the pleadings.

The facts, as we gather them from the petition and return, and the exhibits filed therewith and made a part thereof, are as follows:

Frederick J. Remmers, a resident of the city of St. Louis, died testate on August 7, 1919. He appointed his widow, Wilhelmina Remmers, as executrix of his will, and she duly qualified as such. Before she completed the administration of the estate Wilhelmina Remmers died, and John Schmoll was appointed administrator de bonis non cum testamento annexo on January 10, 1923. John Schmoll, as such administrator, completed the administration, and made final distribution of the assets, and was finally discharged as such administrator on July 15, 1922.

Frederick J. Remmers, by his will, made special bequests to Wilhelmina Remmers, to Clara Bromschwig, to Clara Bromschwig, as trustee for Joseph Remmers, to Vincent Remmers, and to Eugene Remmers. Harry J. Remmers, who was an adopted son of Frederick J. Remmers, was not mentioned in the will, and he became entitled to a one-seventh part of the entire estate by inheritance. These special bequests consisted of shares of stock in three corporations, to wit, F. J. Remmers Contracting & Building Company, Beredith Company, and Consolidated Building Company. During the administration partial liquidation of the assets of said corporations was made, and liquidating dividends were paid in cash to the executrix and administrator aforesaid, and these cash dividends were used, under order of the probate court, in payment of debts and the costs and expenses of administration. This was done with the consent of the special legatees and Harry J. Remmers, under an agreement for reimbursement out of the residue of the estate, which was bequeathed to Wilhelmina Remmers and Clara Bromschwig in equal shares. The residue consisted solely ad a claim against College Hill Press Brick Works, a corporation, in the nature of an account for moneys loaned or advanced to said corporation by the said Frederick J. Remmers, amounting to $27,132.75. Wilhelmina Remmers, as executrix of the will of Frederick J. Remmers, brought suit against College Hill Press Brick Works on this account in November, 1921, in the circuit court of the city of St. Louis. This suit was designated and known as cause No. 50323B. John Schmoll, as administrator de bonis non cum testamento annexo, entered his appearance as a party plaintiff in said suit, and was substituted as plaintiff in the place and stead of said Wilhelmina Remmers on January 10, 1922. Wilhelmina Remmers, by her last will, appointed Marion B. d'Arnoux as executrix of said will, and bequeathed all her interest in the claim of Frederick J. Remmers against College Hill Press Brick Works to Lizzie B. Speer, Marion B. d'Arnoux, Lee Bell, and Francis J. Tayman. In order to make final settlement of the estate of Frederick J. Remmers, the said claim against College Hill Press Brick Works was, under order of the probate court, assigned by John Schmoll, as administrator d. b. n. c. t. a. of said estate in undivided interests, to Clara M. Bromschwig three-sevenths; to Marion B. d'Arnoux, as executrix of the will of Wilhelmina Remmers, three-sevenths; and to Harry J. Remmers, one-seventh—all subject to the claims of the special legatees under the will of Frederick J. Remmers, for reimbursement for the amount of their cash dividends used for the payment of debts and the costs and expenses of administration as aforesaid. In order to make final settlement of the estate of Wilhelmina Remmers, the said interest of her estate in said claim against College Hill Press Brick Works was assigned and transferred by Marion B. d'Arnoux, as executrix under the will of Wilhelmina Remmers, under order of the probate court, to Thomas S. Meng to collect and hold the same for the benefit of said legatees under said will.

Afterwards Harry J. Remmers, Clara Bromschwig, and Thomas S. Meng entered their appearance in said suit against College Hill Press Brick Works, and were substituted as plaintiffs therein in the place and stead of John Schmoll, administrator as aforesaid. After the commencement of said suit against College Hill Press Brick Works, designated and known as cause No. 50323-B, Harry J. Remmers and Vincent Remmers brought separate suits against said College Hill Press Brick Works and Thomas S. Meng, William H. Corcoran, Herman Bromschwig, Clara Bromschwig, and William A. Kinnerk, officers and directors of said College Hill Press Brick Works, in the circuit court of the city of St. Louis, praying the appointment of a receiver for said College Hill Press Brick Works. These suits were afterwards consolidated, and were designated and known as consolidation cause No. 60006—B, upon the hearing of this consolidated cause, at the April term, 1923, of said circuit court, D. J. Schmoll was duly appointed as receiver for said College Hill Press Brick Works, and duly qualified and took charge of the assets of said corporation as such receiver. On May 27, 1924, a supplemental decree was rendered in said cause, adjudging a dissolution of said corporation, pursuant to a resolution adopted by a majority of the stockholders thereof, and investing D. J. Schmoll, as receiver, with the powers and duties of a statutory liquidating trustee of the assets and affairs of said corporation, subject to the supervision and direction of the court. All of the stockholders of the said corporation, including Vincent Remmers, Eugene Remmers, Clara Bromschwig and Clara Bromschwig, trustee for Joseph Remmers, were parties to, and appeared in, said proceeding, and consented to said decree. Afterwards said D. J. Schmoll, as receiver, entered his appearance as a party defendant in cause No. 50323—B, and the cause thereafter proceeded under the style of Harry J. Remmers, Clara Bromschwig, and Thomas S. Meng, Plaintiffs, v. College Hill Press Brick Works, a Corporation, and D. J. Schmoll, Receiver, Defendants. The plaintiffs in said cause filed an amended petition, the cause was tried, and the following judgment was entered therein on December 29, 1926:

"This cause having been tried by the court on the 13th day of April, 1926, and having been on said last-mentioned date by the parties hereto submitted to the court upon the pleadings, evidence, and proof then and theretofore adduced, and having been taken under advisement, and the court now being fully advised of and concerning the premises, doth find in favor of the plaintiffs and against the defendant College Hill Press Brick Works, a corporation, in the hands of D. J. Schmoll, receiver, for the principal sum of $20,217.38, with interest at the rate of 6 per cent. per annum from the 18th day of November, 1921, amounting to the sum of $6,204.99, aggregating the sum of $26,417.35. Wherefore it is considered, adjudged, and decreed by the court that plaintiffs have and recover of the property and effects of the College Hill Press Brick Works, a corporation, in the hands of D. J. Schmoll, as receiver, an aggregate sum of $26,417.35, together with the costs of this suit."

On October 1, 1924, the court made an order in said consolidated cause No. 60006—B for the filing of claims by creditors of said corporation, requiring all creditors to file their claims on or before November 3, 1924. Pursuant to said order, the plaintiffs in said cause No. 50323—B filed with the receiver, as a claim against said corporation, a verified copy of the amended petition filed in said cause No. 50323—B. The said amended petition filed in said cause No. 50323—B contains, among other allegations, the following:

"By the will of said Frederick J. Remmers, the residue of his estate was devised and bequeathed to his widow, Wilhelmina Remmers, and his daughter, Clara Bromschwig, in equal parts. The indebtedness hereinafter referred to as owing by College Hill Press Brick Works to said F. J. Remmers was not specifically disposed of by his will, and such portion of the same as was not required for the payment of costs and expenses of administration passed under the residuary clause of said will. Harry J. Remmers, who was adjudged to be an adopted son of said F. J. Remmers, was not mentioned nor provided for in his will, whereby he became entitled to a one-seventh part of all the estate of said F. J. Remmers, including the residue thereof.

"The assets of the estate of said F. J. Remmers, not specifically devised or bequeathed, other than the indebtedness from College Hill Press Brick Works, were insufficient to pay the costs and expenses of administration. As nothing could be immediately realized on said indebtedness from College Hill Press Brick Works, the dividends on certain shares of stock specifically bequeathed by said F. J. Remmers were used for the payment of costs...