State v. Woodson

• Decision Date: 19 February 1901
• Citation: 161 Mo. 444,61 S.W. 252
• Parties: STATE ex rel. BALLEW et al. v. WOODSON, Judge.
• Court: Missouri Supreme Court

61 S.W. 252

161 Mo. 444

STATE ex rel. BALLEW et al. v. WOODSON, Judge.

Supreme Court of Missouri.

February 19, 1901.

COURTS — VACATION ORDERS — FINAL DECREE —VALIDITY — CONSTITUTIONAL PROVISION —BUILDING AND LOAN ASSOCIATIONS— DISSOLUTION — RECEIVERS — APPOINTMENT —POWERS—CERTIORARI—REVIEW—JURISDICTION.

1. In a suit to dissolve a building and loan association, it was error for the circuit judge in vacation, in addition to appointing receivers for the property and requiring bond from them, to order them to wind up the affairs of the association, to appoint appraisers, declare all loans owing to the association due and payable, and direct the directors to order the conveyance of all property of the association outside the state to the receivers, since such order was a final decree, and not within the jurisdiction of the court in vacation.

2. Under Const. art. 6, § 1, vesting the judicial power of the state as to matters of law and equity in certain courts, except as the constitution itself otherwise provides, the legislature has no power to authorize a circuit judge to hear and determine all the issues in a suit for dissolution of a building and loan association in vacation, since such power can only be conferred on a fully-organized court.

3. Rev. St. 1899, § 1393, provides that the jurisdiction of the circuit court and the processes, pleadings, and proceedings in winding up a building and loan association shall be the same as those provided for the winding up and dissolution of insurance companies, as far as applicable. Rev. St. 1899, § 8026, provides that in winding up insurance companies the adjournment of the court for a term shall not work a postponement of the proceedings to the next term, but the same may be had in vacation as well as term time. Held, in proceedings under Rev. St. 1899, § 1393, that the circuit judge had no jurisdiction to make a final decree in vacation, since the statute did not provide that the jurisdiction of the circuit judge should be the same as in insurance company proceedings, but only that the jurisdiction of the circuit court should be the same.

4. On the filing of a petition by the supervisor of building and loan associations for dissolution of a building association, it was proper for the circuit judge to appoint receivers, and require bonds from them, to take possession of the concern and its affairs, and preserve them from attack, in vacation, and until the court, in due season and order, could make a judicial investigation and pass judgment on the case.

5. Under such final order the receivers had the right to take possession of the assets of the corporation and preserve them, but they had no authority to proceed to administer the estate.

6. Where, on petition of the supervisor of building and loan associations to dissolve an association, the circuit judge in vacation appointed receivers therefor, any orders made by the court thereafter in term time, though made on the assumption that its decree in vacation was final, cannot be considered on certiorari, since it had complete jurisdiction of the case, and any errors in such orders were not jurisdictional, and could be corrected on appeal or writ of error.

In banc. Certiorari by the state, on relation of one Ballew and others, against A. M. Woodson, judge, etc. Order quashed in part.

Crow & Eastin and Vinton Pike, for relators. O. M. Spencer, Huston & Brewster, and Ben. J. Woodson, for respondent.

VALLIANT, J.

This writ of certiorari, which issued at the instance of certain stockholders of the Phœnix Loan Association, brings up the record of the Buchanan circuit court in the case of State v. Phœnix Loan Ass'n (Mo. Sup.) 60 S. W. 74, from which record it appears that it is a suit instituted by the supervisor of building and loan associations, in his official character, under section 1392, Rev. St. 1899, looking to the dissolution of the Phœnix Loan Association and the winding up of its affairs. The suit was begun by the filing of the petition in the circuit clerk's office during the vacation of that court, on July 15, 1899. At the same time the answer of the defendant corporation was filed, and on the same day the petition and answer were presented to a judge of that court in chambers, who thereupon made and signed an order in the words following, to wit: "In the Circuit Court of Missouri, within and for Buchanan County. In Vacation. State of Missouri ex rel. Henry L. Gray, Supervisor of Building & Loan Associations, Relator, v. Phœnix Loan Association of St Joseph, Missouri, Respondent. Whereas, Henry L. Gray, supervisor of building and loan associations of the state of Missouri, has this day filed his petition in the circuit court of Buchanan county, in division number 1, in vacation, against the Phœnix Loan Association, of St. Joseph, Missouri, stating that he is the supervisor of building and loan associations of said state of Missouri, and that respondent is a building and loan association organized and existing under the laws of the state of Missouri, and further states that he has made an examination of the affairs of said association, and finds that it is no longer able to carry out the object and purposes of its organization, and that its continuance in business would work injuriously to the stockholders and others interested in said association, and the same having been taken up and considered by the undersigned judge of said court, who finds from the petition and the answer filed herein that the allegations of said petition are true, it is therefore ordered that said building and loan association be dissolved, and the officers, agents, and employés of said association are hereby enjoined from further conducting the business of said association, and from in any manner interfering with its business and its property and effects, and that the court hereby appoints Graham G. Lacy and Harry M. Tootle as receivers to take charge of the property and assets, and to wind up the affairs of said association according to law, and as this court may from time to time order. And it is further ordered that each of said receivers execute a bond or bonds to the state of Missouri, each to aggregate the sum of fifty thousand dollars, to be approved by the judge of this court, before they enter upon the discharge of the duties of their office. And it is further ordered that the said receivers select their own bank in which to deposit the funds of said association as they are collected by them, and said bank is ordered to execute bond to the said state of Missouri in the sum of one hundred thousand dollars, to be approved by the judge of this court, to the use and benefit of all parties interested in assets of said association, for the faithful keeping and accounting of such money and funds as may be deposited in said bank by said receivers from time to time; and said bank is ordered to notify the judge of this court of the daily deposit made in said bank by said receivers. And it is further ordered that the receivers make a complete and accurate inventory of all the assets of said association at the earliest possible time, and G. P. Kincade and F. A. H. Garlichs are appointed appraisers to appraise the assets of said association; and the court hereby declares all loans owing said association, however evidenced, to be, and they are now, due and payable. It is further ordered that the board of directors of said association forthwith make an order directing the president and secretary of said association to execute proper deeds and conveyances conveying to the receivers herein named all the property, real, personal, and mixed, belonging to said association, and not located in the state of Missouri; and said president and secretary are hereby ordered to forthwith execute said instruments conveying said property to said receivers, and said receivers are hereby ordered to proceed to wind up the affairs of said association as speedily as is consistent with the best interest of the creditors and shareholders of said association. It is further ordered that the receivers hereby appointed employ R. A. Brown as their attorney and counselor in all matters connected with the management and winding up of the affairs of said association; the compensation of said attorney to be approved by this court. It is further ordered that the receivers employ such clerical assistance as may be necessary in the protection, collection, and preservation of the assets of said association; the compensation of said clerical assistance to be approved by this court. A. M. Woodson, Judge. July 15, 1899." The receivers so appointed gave their bonds, respectively, as the order required, on July 17th and 19th. On August 5th the receivers filed a petition in which they requested instructions in relation to determining the amount due on certain mortgages. On August 30th the receivers and appraisers filed an inventory and appraisement showing assets valued at $434,726.81. On September 2d A. L. Crawford and 14 others filed their petition showing that they were stockholders in the corporation, and asking to be made parties to the suit. The petition is elaborate in its statements, averring mismanagement on the part of the officers of the corporation, and that the suit was brought, not in the interest of the stockholders, but by collusion between the relator and the guilty officers, to aid them in covering up their misdeeds, and enable them to profit in the fees and salaries incident to the winding up of the affairs of the corporation. Special objection was urged against one of the receivers, and his removal was asked. This petition was presented to the judge who had made the order of July 15th, and thereupon he ordered the petitioners to be made parties defendants, modified the order of July 15th so as to authorize the receivers to make their own selection of an attorney, and denied the prayer for the removal of the receiver against whom the special objections...