State v. Riley

• Decision Date: 03 March 1928
• Docket Number: No. 4273.,4273.
• Parties: STATE ex rel. LA FON et al. v. RILEY, Judge of Circuit Court, et al.
• Court: Missouri Court of Appeals

4 S.W.2d 482

STATE ex rel. LA FON et al. v. RILEY, Judge of Circuit Court, et al.

No. 4273.

Springfield Court of Appeals, Missouri.

March 3, 1928.

Application by the State, at the relation of A. M. La Fon and another, for writ of prohibition prayed to be directed to Hon H. C. Riley, Judge of the Circuit Court of Pemiscot County, and another. Preliminary writ quashed, and proceedings dismissed.

Sheppard & Hawkins, of Caruthersville, for relators.

COX, P. J.

The record was fully presented to us by relators when their petition for the writ was filed. On that petition a preliminary writ was issued, and the cause is now before us to determine whether this writ should be made permanent or denied.

The record discloses that A. M. La Fon, one of the relators, and John M. McTeer had engaged in a joint enterprise in which they purchased a large tract of land, and the title was taken in the name of McTeer. Afterward La Fon filed a petition in court alleging misconduct on the part of McTeer, and asking that a receiver be appointed to take charge of the land and handle it under the orders of the court. This was done, and W. H. Dorsey, the other relator herein, was appointed receiver, and took possession and charge of the land, and still retains it as receiver. This land was and is incumbered by a deed of trust now owned by E. P. Melson, one of respondents. Melson filed a petition in court alleging that default had been made in the payment of interest due on the debt secured by his deed of trust, and that under its terms, but for the receivership, he was entitled to foreclose the deed of trust, but, if that were done, the land would not sell for enough to pay the debt against it, and asked that the rents and income from the land be impounded in the hands of the receiver until it could be ascertained whether his debt could be collected by a sale of the land, and, if not, that any money in the hands of the receiver produced as income from the land be applied to pay the deficiency. Before this petition was acted upon, its prayer was amended by asking the court to direct the receiver to pay taxes against the land held by the receiver as a part of the administration costs of the receivership. The court then made the following order, omitting parts unnecessary to recite here:

"It appearing to the satisfaction of the court that the receiver appointed by this court, W. H. Dorsey, has collected rents and profits during the years 1925 and 1926 on the real estate taken possession of by said receiver in the above-entitled cause, and that the taxes on said premises have not been paid, it is therefore ordered by the court that said receiver be directed to apply $1,000 of the funds in his hands as such receiver on the payment of taxes now due on the property described in the order of the judge of this court appointing the said W. H. Dorsey receiver, said order being dated on the 8th day of September, 1925, and that the receiver take from the collector of Pemiscot county, Mo., receipt for such payment, and file the same with the clerk of the circuit court of Pemiscot county, Mo., on or before the 31st day of December, 1926."

The plaintiff in the receivership case, A. M. La Fon, and W. H. Dorsey, the receiver, filed a motion on the next day to set aside this order to pay taxes. This motion was overruled, and the movants, La Fon and Dorsey, then applied to this court for a writ of prohibition.

The only question before us in this proceeding is whether the circuit court had jurisdiction or authority to make the order directing the receiver to pay taxes on the land held by him as receiver. It will be observed that the petition asking the court to order the receiver to pay taxes on the land was filed by the holder of the deed of trust on the land. Relators contend that the petition filed by the mortgagee so utterly fails to state a cause of action that it is not amendable, and, for that reason, did not confer jurisdiction on the court to make the order directing the receiver to pay taxes on the land. The mortgagee was undoubtedly an interested party. The land was his security for his debt, but, since it had gone into the hands of a receiver, he could not foreclose without first securing the permission of the court to do so. He had no means of knowing how long the receivership would continue, nor what amount of taxes, interest, and penalties might accumulate during the...