Trimble v. Kansas City, P. & G. R. Co.

• Decision Date: 10 February 1904
• Citation: 180 Mo. 574,79 S.W. 678
• Court: Missouri Supreme Court
• Parties: TRIMBLE et al. v. KANSAS CITY, P. & G. R. CO.

79 S.W. 678

180 Mo. 574

TRIMBLE et al. v. KANSAS CITY, P. & G. R. CO.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

ATTORNEYS—ACTION FOR COMPENSATION—DEFENSES—PRIOR SUIT PENDING—PAYMENT—INTEREST—DEMAND—STATUTE.

1. A federal court which had charge of defendant's property through its receiver made an order authorizing those having claims against the assets to present them to that court for allowance, or to sue thereon in some other court of competent jurisdiction, within a limited time. Plaintiffs had a claim against defendant for legal services rendered prior to the receivership. Prior to the order of the court, plaintiffs had filed an intervening petition asking for an allowance from the assets in the hands of the federal court for the amount of their claim against defendant. After the order, plaintiffs sued the defendant in the state court for the amount of their claim, and filed a supplementary intervening petition in the federal court, reciting the fact of the suit having been filed, and claiming that the judgment to be rendered in the state court would be a preferential claim. Held that, the subject-matter of the first intervening petition and that of the suit in the state court being different, a plea to the suit in the state court of prior action pending, predicated on the first intervening petition, is not tenable.

2. The supplementary intervening petition was an abandonment of the first intervening petition, and for that reason the plea of prior action pending was not tenable.

3. In an action to recover for legal services rendered prior to receivers having been appointed to take charge of defendant's property, a plea of payment cannot be predicated on the amount received by plaintiffs from the assets of the defendant in the hands of the court for services rendered the receivers.

4. Under Rev. St. 1899, § 3705, providing that interest shall be allowed on accounts after they become due and demand for payment is made, the institution of a suit is a sufficient demand.

5. Where judgment is rendered for plaintiffs in an action to recover the value of legal services rendered, and there is no proof of demand prior to the commencement of the action, interest is properly allowed from the date of the institution of the suit, under Rev. St. 1899, § 3705, providing that interest shall be allowed on claims after they become due, and demand for payment is made.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by J. McD. Trimble and others against the Kansas City, Pittsburg & Gulf Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore and Samuel W. Sawyer, for appellant.

The United States court, by the foreclosure proceedings and other proceedings therein, and particularly by the filing of plaintiffs' intervening petition, having first obtained complete jurisdiction over the subject-matter and the parties to this controversy, the trial court should have refused to entertain jurisdiction, or at least should have stayed proceedings until the intervening petition of plaintiffs pending in the United States court should have been heard and determined. 17 Am. & Eng. Encyc. of Law (2d Ed.) 180; Hardware Co. v. Building Co., 132 Mo. 442, 34 S. W. 57, 31 L. R. A. 335, 53 Am. St. Rep. 494; Butler v. Mining Co., 139 Mo. 467, 41 S. W. 234, 61 Am. St. Rep. 464; Robinson v. Investment Co., 80 Mo. App. 621; Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666; Harkrade v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399; Ex parte Balch, 3 McLean, 221, Fed. Cas. No. 790; Earl v. Raymond, 4 McLean, 233, Fed. Cas. No. 4,243; Nelson v. Foster, 5 Biss. 44, Fed. Cas. No. 10,105; Brooks v. Mills County, 4 Dill. 524, Fed. Cas. No. 1,955; Radford v. Folsom (C. C.) 14 Fed. 97; Sharon v. Terry (C. C.) 36 Fed. 337, 1 L. R. A. 572; Jessup v. Wabash, etc., Ry. Co. (C. C.) 44 Fed. 663; President, etc., v. Merritt (C. C.) 59 Fed. 6; Foley v. Hartley (C. C.) 72 Fed. 570; Marks v. Marks (C. C.) 75 Fed. 321; Gamble v. San Diego (C. C.) 79 Fed. 487; Zimmerman v. So Relle, 80 Fed. 417, 25 C. C. A. 518; Hughes v. Green, 84 Fed. 833, 28 C. C. A. 537; Fidelity, etc., Co. v. Norfolk, etc., Co. (C. C.) 88 Fed. 815; Ryan v. Seaboard, etc., Ry. Co. (C. C.) 89 Fed. 397; Rodgers v. Pitt (C. C.) 96 Fed. 668; Mercantile, etc., Co. v. Roanoke, etc., Co. (C. C.) 109 Fed. 3; State Trust Co. v. Kansas City, etc., R. Co. (C. C.) 110 Fed. 10; Starr v. Chicago, etc., Co. (C. C.) 110 Fed. 3; Stewart v. Wisconsin, etc., Ry. Co. (C. C.) 117 Fed. 782; Farmers', etc., Co. v. Chicago, etc., Co. (C. C.) 118 Fed. 204; Union, etc., Co. v. Riggs (C. C.) 123 Fed. 312; Smith v. Atlantic, etc., Co., 2 Fost. 21; Wilson v. Milliken, 103 Ky. 165, 44 S. W. 660, 82 Am. St. Rep. 578; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, 93 Am. St. Rep. 299; Riesener v. Gulf, etc., Ry. Co., 89 Tex. 656, 36 S. W. 53, 33 L. R. A. 171, 59 Am. St. Rep. 84; Home Ins. Co. v. Howell, 24 N. J. Eq. 238; note in 29 Am. St. Rep. 312.

Eaton & Loomis, for respondents, cited Bowne v. Joy, 9 Johns. 221; Hatch v. Spofford, 22 Conn. 497, 58 Am. Dec. 433; Maule v. Murray, 7 T. R. 466; Imlay v. Ellefsen, 2 East, 457; Colt v. Partridge, 7 Metc. (Mass.) 572; Smith v. Lathrop, 44 Pa. 328, 84 Am. Dec. 448; Cox v. Mitchell, 7 C. B. (N. S.) 55; Wood v. Lake, 13 Wis. 91; Wadleigh v. Veazie, 3 Sumn. 167, Fed. Cas. No. 17,031; Loring v. Marsh, 2 Cliff. 322, Fed. Cas. No. 8,514; White v. Whitman, 1 Curt. 494, Fed. Cas. No. 17,561; Salmon v. Wooton, 9 Dana, 422; Yelverton v. Conant, 18 N. H. 124; Walsh v. Durkin, 12 Johns. 99; Davis v. Morton, 4 Bush, 444, 96 Am. Dec. 309; Gordon v. Gilfoil, 99 U. S. 168, 25 L. Ed. 383; Pierce v. Feagans (C. C.) 39 Fed. 587; Sharon v. Hill (C. C.) 22 Fed. 28; Mfg. Co. v. Scutt (C. C.) 22 Fed. 710; Rodgers v. Pitt (C. C.) 96 Fed., loc. cit. 677; Leidigh Carriage Co. v. Stengel, 95 Fed., loc. cit. 642, 37 C. C. A. 210; Ryan v. Railroad Co. (C. C.) 89 Fed., loc. cit. 407; Brendell v. Charch (C. C.) 82 Fed. 262; Shaw v. Lyman (C. C.) 79 Fed., loc. cit. 3; Gamble v. San Diego (C. C.) 79 Fed., loc. cit. 500; Deming v. Ins. Co. (C. C.) 78 Fed., loc. cit. 4; Gassman v. Jarvis (C. C.) 100 Fed. 146; City of North Muskegon v. Clark, 62 Fed. 698, 10 C. C. A. 591.

MARSHALL, J.

This is an action of assumpsit to recover $10,000 attorney's fees for services rendered by the plaintiffs to the defendant between April 1, 1899, and April 1, 1900. The petition alleges that the services were rendered in connection with the scheme of reorganization of the defendant company, and the paring down and funding of its debts, bonds, and stocks, and the payment of its floating obligations, and the consolidation of the defendant company with other connecting and terminal companies so as to form a continuous line from Kansas City, Mo., to Pt. Arthur, Tex. The answer is a general denial, with special pleas of prior action pending and of payment. The reply is a general denial. The plaintiffs recovered judgment for $10,000, with interest from the institution of this suit, and the defendant appealed. It is not necessary for the determination of this case to make any detailed or extended statement of the nature or character of the services that the plaintiffs rendered the defendant, nor to follow the elaborate scheme that was devised and carried out for the reorganization and consolidation of the defendant company with the other connecting and terminal companies. It is enough to say that the defendant company was in bad shape, had a large floating debt, had defaulted in the payment of interest on its bonded debt, and that its creditors were at outs with respect to what should be done, and that all differences were adjusted, the practical consolidation effected, the obligations pared down and adjusted, the stockholders saved a large part of their investments, the floating debt was paid or provided for, and a fund of several million dollars created to pay expenses and betterments. This was effected mainly through receiverships, first in the state courts, and afterwards in the federal courts, which brought the conflicting interests together, and resulted in a foreclosure sale of the property and assets of the defendant company, and the purchase of the same by a company (the Kansas City Southern Railway Company) organized for the purpose. The plaintiffs filed an intervening petition in the case in the federal court on March 20, 1900, for services rendered the defendant, asking $5,000 for their services, and that it be paid out of the assets in the hands of the receiver. Thereafter, on April 18, 1900, the federal court made an order that all persons who held claims or demands against the defendant, and who desired to participate in the distribution of the assets in the hands of the receiver resulting from the foreclosure sale and other money that came into the hands of the receiver, should present them for allowance to that court, or sue upon them in some other court of competent jurisdiction, within six months of the date of the publication of such order, or be forever barred from participation in such assets. Thereafter, on September 19, 1900, the plaintiffs began this action in the circuit court of Jackson county; and afterwards, on October 29, 1900, they filed a supplemental intervening petition in the federal court, in which they recited the filing of the first intervening petition for a portion of their services, and stated that they filed the supplemental intervening petition so as to cover all their claims, and so as to show suits pending therefor, and recited that they had instituted this suit in the circuit court of Jackson county as aforesaid. And the plaintiffs claimed that said demand was preferential, and should be allowed and paid out of the assets in the hands of the receiver. Nothing further had been done therewith in the federal court at the date of the trial of this case. It did appear, however, that the...