State v. Klein

• Decision Date: 02 March 1897
• Citation: 137 Mo. 673,39 S.W. 272
• Parties: STATE ex rel. HECKEL et al. v. KLEIN, Circuit Judge.
• Court: Missouri Supreme Court

39 S.W. 272

137 Mo. 673

STATE ex rel. HECKEL et al. v. KLEIN, Circuit Judge.

Supreme Court of Missouri.

March 2, 1897.

CORPORATIONS — ACTION BY STOCKHOLDERS — JUDGMENT FOR REMOVAL OF OFFICERS — APPEAL — REFUSAL TO APPROVE BOND — MANDAMUS.

1. The word "execution," as used in Rev. St. 1889, § 2249, with reference to a stay during proceedings on appeal, comprehends process under a final judgment for the removal of appellants from the offices of a corporation, and the transfer of the corporate books and property to a receiver.

2. The approval of an appeal bond determines the question of its sufficiency to effect a stay of proceedings. State v. Dillon, 11 S. W. 255, 98 Mo. 90, followed.

3. Where an appeal from a judgment other than for payment of money may result in a pecuniary loss to appellee, it is in the discretion of the trial judge to fix the amount of the appeal bond.

4. Where a final judgment involves the removal of appellants from the offices of a corporation, the transfer of the corporate books and property to a receiver, and actions by the receiver to recover $16,000 alleged to have been diverted from the corporation by appellants, an appeal bond in the sum of $500, operating to stay proceedings, was properly refused.

Burgess, J., dissenting.

In banc. Application, on the relation of George P. Heckel and Peter Randolph, for a peremptory writ of mandamus to compel Jacob Klein, as trial judge in the case of Louis E. Vogelsang and another against the relators and others, to approve an appeal bond. Denied.

This is 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, ...