Truesdale v. St. Louis Public Service Co.

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 778,341 Mo. 402
• Parties: Mary Truesdale, Appellant, v. St. Louis Public Service Company, a Corporation
• Court: Missouri Supreme Court

107 S.W.2d 778

341 Mo. 402

Mary Truesdale, Appellant, v. St. Louis Public Service Company, a Corporation

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearry, Judge.

Affirmed.

Moser Marsalek & Dearing for appellant.

(1) The record of the case of Mary Truesdale v. Rolla Wells receiver, introduced in evidence in this case by the plaintiff, shows that the suit was properly filed; that the defendant, Rolla Wells, was personally served with a summons, and that he entered his appearance, admitted his appointment as receiver, and answered the petition; that the cause came on for hearing; the parties appeared by their attorneys, and the case was tried by the court and a jury, and that at the conclusion of the trial the jury found in favor of plaintiff and assessed her damages at $ 11,742; that the court thereupon rendered judgment that plaintiff have and recover out of the property and effects of the United Railways Company of St. Louis, in the hands of Rolla Wells, as receiver, the sum of $ 11,742, with the costs of the suit. The court had jurisdiction of the cause; the proceedings and judgment as shown by the record are regular in every respect, and exhibit no defect or error. Said judgment is final and cannot be impeached in this proceeding. Miller v. McCoy, 50 Mo. 214; Cochran v. Thomas, 131 Mo. 258, 33 S.W. 6; Cox v. Boyce, 152 Mo. 576, 54 S.W. 467; Rivard v. Mo. Pac. Ry. Co., 257 Mo. 135, 168, 165 S.W. 763; State ex rel. Johnson v. Merchants' & Miners' Bank, 279 Mo. 236, 213 S.W. 815; Howey v. Howey, 240 S.W. 457, certiorari denied 260 U.S. 730; Gunby v. Cooper, 177 Mo.App. 354, 164 S.W. 152. (a) The record shows that the defendant, St. Louis Public Service Company, by purchasing the property in the hands of the receiver on May 25, 1927, bound itself to pay or discharge, or to provide for the payment or discharge, of all injury and damage claims against the receiver, and that by virtue of the final decree and order confirming the sale, took and held such property subject to compliance with the obligation it assumed, and in subordination thereto. The record further shows that the defendant knew of the Truesdale claim and suit before it purchased the property, obtained from the receiver a file showing all the facts in the matter, and appeared in court, when the case was called for trial, and announced ready. Under such circumstances the defendant is bound by the terms of the judgment, and cannot impeach the same. Central Trust Co. of Mobile v. D'Arcy, Trustee, 238 Mo. 676, 142 S.W. 294; Julian v. Kansas City Granite & Mounment Co., 187 S.W. 584; State ex rel. Hempstead v. Coste, 36 Mo. 438; Strong v. Phoenix Ins. Co., 62 Mo. 289; London Accident & G. Co. v. Strait Scale Co., 322 Mo. 513, 15 S.W.2d 766; Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; Jennings v. Cherry, 301 Mo. 321, 257 S.W. 438; State ex rel. Reeves v. Barker, 26 Mo.App. 487; Payne v. Cummins, 207 Mo.App. 64, 230 S.W. 656; Nolan v. Johns, 108 Mo. 437, 18 S.W. 1107; St. Louis, S.W. Railroad Co. v. Holbrook, 73 F. 112; Painter v. Painter, 138 Cal. 231, 71 P. 90; Smith v. U.S. Express Co., 135 Ill. 279, 25 N.E. 525. (b) The claim of Mary Truesdale v. Rolla Wells for her injury constituted a prior liability against the property held by the receiver. The defendant, St. Louis Public Service Company, as purchaser of said property, subject to said claim, had the unquestioned right to appear in and defend the suit of Truesdale v. Wells. 53 C. J., p. 257, sec. 429; Meyer Rubber Co. v. Railroad Co., 174 F. 733; Bound v. Railroad Co., 174 F. 731; Cross v. Evans, 86 F. 6. (2) A suit against a receiver does not result in a personal judgment against the receiver, but is in the nature of an action in rem, the judgment being payable only out of the receivership estate. Such a proceeding does not abate with the discharge of the receiver, but may be continued either in the name of the receiver or of the successor to the receiver's interest in the property. "It is the settled law of the State that a change of parties in interest after the institution of the suit, does not necessarily require that the action proceed in the names of the new parties." Sec. 904, R. S. 1929; 1 C. J., pp. 147-8, sec. 232; Interstate Trust & Banking Co. v. Dierks Lbr. & Coal Co., 133 Mo.App. 35, 113 S.W. 1; First Natl. Bank v. Hahn, 197 Mo.App. 597, 198 S.W. 489; Preston v. Railroad Co., 292 Mo. 442, 239 S.W. 1080; Garden, etc., Drainage Dist. v. Bartlett Trust Co., 330 Mo. 567, 50 S.W.2d 627; Asher v. Railroad Co., 89 Mo. 116, 1 S.W. 123; Peterson v. Baker, 78 Kan. 337, 97 P. 373; Baer v. McCullough, 176 N.Y. 97, 68 N.E. 129, affirmed 72 A.D. 628, 76 N.Y.S. 1008; Carver v. Merriman, 17 A.D. 186; Evans v. Interstate Rapid Transit Ry. Co., 106 Mo. 601, 17 S.W. 489; Wells v. Electric Co., 108 Mo.App. 607, 84 S.W. 204. (a) The liability of the St. Louis Public Service Company to pay or discharge the claims which accrued against Rolla Wells, as receiver, arose not only from the decree of the Federal Court, but was imposed by statutory provisions. The Missouri statute specifically provides that the purchaser of a railroad shall take and hold the property subject to the payment of all judgments, claims, debts, and liabilities of the seller, existing at the time of the sale; that suit may be brought upon any such claim against either the seller or the purchaser, at claimant's option, and that in any suit pending at the time of sale the plaintiff may, at his option, have the purchaser made a party defendant. "But such plaintiff's failure to have such corporation made a defendant in the case shall not in any manner prevent or bar such plaintiff from enforcing any judgment obtained in such suit against the corporation so acquiring, purchasing or taking such railroad, or railway, or part thereof. . . ." Secs. 4690, 4812, Chap. 32, Art. II, R. S. 1929; Title 28, U.S. Code, secs. 124, 125; Sams v. Railroad Co., 174 Mo. 53, 73 S.W. 686; Watkins v. K. C. & W. B. Ry. Co., 209 S.W. 950; Davis v. Fleming, 253 S.W. 801; Yerxa, Andrews & Thurston v. Viviano, 44 S.W.2d 98; Allen v. Surety Life Ins. Co., 92 S.W.2d 956; Marshall v. People, 254 U.S. 380, 65 L.Ed. 318; Texas & P. Railroad Co. v. Johnson, 151 U.S. 81, 38 L.Ed. 89; Gabelman v. Railroad Co., 179 U.S. 335, 45 L.Ed. 220; Mercantile Trust Co. v. Railroad Co., 286 F. 425; Pierce v. Van Dusen, 78 F. 693; Hornsby v. Eddy, 56 F. 461; Central Trust Co. v. Wabash Ry. Co., 26 F. 12.

T. E. Francis and Woodward & Evans for respondent.

(1) The purported judgment in the case of Truesdale v. Rolla Wells receiver, having been rendered after the discharge of the defendant receiver, was a nullity and of no force or effect. It could not be made the basis of a liability against the purchaser of the railways property at a foreclosure sale. Shepherd v. St. L. Pub. Serv. Co., 64 F.2d 612; Texas & Pac. Ry. Co. v. Bloom's Adm'r, 164 U.S. 636, 17 S.Ct. 216, 41 L.Ed. 580; Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 457; Hanlon v. Smith, 175 F. 197; Texas & Pac. Ry. Co. v. Johnson, 76 Tex. 421, 13 S.W. 463; Texas & Pac. Ry. Co. v. Watson, 24 S.W. 952; Farmers L. & T. Co. v. Central Railroad, 7 F. 537; 51 C. J., sec. 866, 964; Henry v. Claffey, 127 N.E. 193, 14 A. L. R. 360. The situation with respect to a judgment against a discharged receiver is similar to that of a judgment against a dissolved corporation or a deceased person, and in both cases the courts have declared that such judgments are wholly void. Meramec Spring Park v. Gibson, 268 Mo. 394, 188 S.W. 179; Pendleton v. Russell, 144 U.S. 645, 36 L.Ed. 574; Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 761; Wahl v. Murphy, 99 S.W.2d 32. (2) The judgment against the discharged receiver, being wholly void, can be attacked in this proceeding to enforce liability for payment against the purchaser. 15 R. C. L., sec. 314, p. 840; Meramec Spring Park v. Gibson, 268 Mo. 394, 188 S.W. 179; Hecht Bros. v. Walker, 35 S.W.2d 372; Drake v. K. C. Pub. Serv. Co., 41 S.W.2d 1066; Edmonds v Scharff, 279 Mo. 78, 213 S.W. 823; Feurt v. Caster, 174 Mo. 289, 73 S.W. 576. The recital in the purported judgment against the receiver to the effect that the parties appeared "by their respective attorneys" could not preclude the purchaser from impeaching the judgment in this action, nor does it operate to make an otherwise void judgment valid. Bell v. Brinkman, 123 Mo. 270, 27 S.W. 374; Little v. Browning, 287 Mo. 278, 230 S.W. 92. (3) Had appellant obtained a valid judgment against the receiver it could not be made the basis of a liability against the purchaser in this action, for the reason that she did not present her claim for payment within the time prescribed in the decree of sale. Having founded her right of recovery upon the Federal Court decree and claimed the benefits thereunder, appellant must submit to the conditions upon which the privilege was granted. Smith v. Mo. Pac. Railroad Co., 266 F. 657. The fact that respondent had knowledge of the pending action against the receiver did not relieve appellant of her duty to make due presentment of her claim. 35 C. J. 921; Wade v. Wade, 81 Vt. 275; Natl. Metal Co. v. Copper Co., 89 P. 535, 9 A. L. R. (N. S.) 1062; Miller v. Prowak, 203 Mo.App. 413, 221 S.W. 159; Garland v. Furst, 5 A. L. R. 275. The terms and conditions contained in the decree are reasonable and binding upon appellant. (4) Section 904, Revised Statutes, 1929, has no application to this case. Not only does the record fail to show compliance with the conditions set up in the statute, but it is also clear that there was no "transfer of interest" from the receiver to the purchaser within the meaning of the section. Nor is Section 4690, Revised Statutes 1929, applicable. There was no sale or transfer...