Walker v. Charlot
| Decision Date | 03 July 1917 |
| Parties | GEORGE W. WALKER, Respondent, v. F. S. CHARLOT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
REVERSED.
Judgment reversed.
George B. Webster for appellant.
The action of the plaintiff in beginning and prosecuting the suit against the Ozark Cooperage & Lumber Company, as the grantee of his alleged judgment debtor, in which he sought to follow the assets, amounted to an election between inconsistent remedies. Stokes v. Burns, 132 Mo. 226; Welsh v Carder, 95 Mo.App. 45. This election was one which he could not subsequently withdraw or avoid. Bigelow, Estoppel (5 Ed.), 673. And it was an absolute bar against the maintenance of this case. Nanson v. Jacoby, 93 Mo 331; Boogher v. Frazier, 99 Mo. 325; Tower v. Compton H. Imp. Co., 192 Mo. 379.
Charles Erd, Henry B. Davis and Robert A. Thomann for respondent.
(1) (a) Even where an answer sets up as a defense the pendency of a former suit between the same parties, founded on the same cause of action, the plaintiff may dismiss the first one and proceed with the second one, and such dismissal may even be set up in an amended reply. Warder v. Henry, 117 Mo. 530, 542. (b) Plaintiff having dismissed the former suit, before the trial of the present one, defendant is in no position to complain of the pendency of the first suit, even if he had pleaded the same in his answer as a bar to the maintenance of the second suit. Warder v. Henry, 117 Mo. 530, supra; Michelin Tire Company v. Webb, 143 Mo.App. 679, 682. (2) The pendency of the former suit against the Ozark Cooperage and Lumber Company, as a defense to the present suit, is not available to defendant, for two reasons: First. No such defense was set up in his answer. Second. One suit was against the corporation, and the second against the defendant as a stockholder of the corporation; therefore, the remedies were concurrent. Tire Co. v. Webb, 143 Mo.App. 679, 682. The law is well settled that where the remedies are concurrent the pendency of the first suit is no objection to the prosecution of the second one. Warder v. Henry, 117 Mo. 530, 542; Tire Co. v. Webb, supra. "As the general rule is, that a plea of former suit pending is not available as a defense, unless the former suit is effectual, that is, that the plaintiff can obtain his remedy therein as completely as by the second suit." Tire Co. v. Webb, 143 Mo.App. 682.
This action was originally instituted against the appellant, F. S. Charlot, and O. J. Hill, W. B. Hill, B. F. Hobart and George W. Decker. The appellant alone was served with process, however.
The amended petition, upon which the cause was tried, alleges that on or about April 22, 1902, the defendants executed and acknowledged articles of association of the Ozark Cooperage Company, a corporation, termed "Company No. 1," and caused said company to be organized under the laws of this State; that the corporation, with capital stock of $ 100,000, purporting to be fully paid, proceeded to do business in this State, and that on February 23, 1905, it was indebted to plaintiff for lumber, staves, etc., delivered to it by plaintiff, and on that date plaintiff instituted suit against it in the United States Circuit Court for the Eastern Division of the Eastern Judicial District of Missouri; that in that action plaintiff, on May 17, 1907, recovered a judgment against said corporation in the sum of $ 2370.80 and costs, which judgment was thereafter ordered by the United States Circuit Court of Appeals to be reduced by remittitur to the sum of $ 1548.16; that on February 11, 1909, plaintiff duly entered the remittitur, and execution was duly issued on the judgment, which execution was returned nulla bona; and that no part of the judgment or of the costs have been paid.
It is then alleged that prior to the rendition of the judgment in plaintiff's favor the corporation was the owner of a large amount of property, trade and good will of the value of at least $ 100.000, but that during the pendency of the above-mentioned suit the appellant Charlot and his codefendants, being then officers and directors of the corporation and comprising all of its stockholders, for the purpose of avoiding the payment of the judgment, and with the intent to hinder, delay and defraud plaintiff, and other creditors as well, "concocted, devised and consummated a fraudulent plan and scheme to dispose of, conceal and remove all of the monies, properties and other assets of said corporation, from the reach of an execution or seizure by other process of law by its creditors, and in carrying into execution the said wrongful and unlawful purpose and scheme did and performed, and caused to be done and performed, the following acts," viz.:
(a) On April 20, 1905, "caused affidavit to be made by O. J. Hill, as president of said Company No. 1, for the purposes therein recited of dissolving and reorganizing said corporation," and filed said affidavit with the Secretary of State of the State of Missouri, on April 22, 1905.
(b) On April 22, 1905, filed with the Secretary of State of the State of Missouri a certified copy of articles of association, recorded in the office of the recorder of deeds of the city of St. Louis on April 22, 1905, executed and acknowledged by the defendants and by one L. M. Preston, for the purpose of incorporating another corporation under the name, "Ozark Cooperage Company," termed "Company No. 2."
(c) On April 22, 1905, or shortly thereafter, "conveyed, transferred and assigned all of the property and effects of every kind and description" of "Company No. 1" to "Company No. 2."
(d) On May 12, 1906, procured the execution of articles of incorporation for the incorporation of the "Ozark Cooperage & Lumber Company" under the laws of the State of New Jersey, "and obtained a certificate of incorporation by that name, authorizing said company to issue capital stock to the amount of $ 300,000."
(e) On June 24, 1906, caused an affidavit to be made by one Nelson, as assistant and acting secretary of "Company No. 2," reciting that by the unanimous vote of its stockholders said company had duly dissolved.
(f) On June 29, 1906, filed with the Secretary of State of the State of Missouri an application for a license authorizing the said New Jersey corporation to transact business in this State, wherein it was set forth that the portion of the capital stock represented by the property and business of said corporation within this State amounted to $ 100,000.
(g) On June 29, 1906, or shortly thereafter, "caused all the assets of every kind and character of Company No. 2 to be conveyed, transferred and assigned to said Ozark Cooperage & Lumber Company."
(h) On August 26, 1911, caused the affidavit of said Nelson, supra, to be filed with the Secretary of State of the State of Missouri.
It is then alleged that the capital stock of "Company No. 2" was paid solely by and with the property and assets of "Company No. 1;" and that on the organization of "Company No. 2" certificates of stock were issued to defendant Charlot and the other stockholders of the original company, and to one Preston, in the proportion that they had agreed would represent their respective interests in the property and effects of "Company No. 1," and that defendant Charlot received certificates to the amount and value of $ 10,000; and that the capital stock of the Ozark Cooperage & Lumber Company, or so much thereof as was paid, was likewise paid solely by and with the property and assets of "Company No. 1," and that defendant Charlot received certificates of stock in said Ozark Cooperage & Lumber Company to the amount and value of $ 10,000.
It is averred that on the pretended dissolution of "Company No. 1" all of its property and assets constituted "trust property and trust funds" in the hands of defendant Charlot and the other officers, directors and stockholders of said company "for the payment of its creditors," and that the acts of defendant Charlot and his associates constituted a wrongful appropriation and conversion by them of the property mentioned, which remained charged with the payment of the debts of the corporation.
It is further averred that after "the fraudulent conveyance, transfer and assignment" of the property and assets of "Company No. 1" to "Company No. 2," "in order to more effectually conceal said property and effects from the creditors of said first named company, and to further deceive them, the same was conveyed, transferred and assigned to said Ozark Cooperage & Lumber Company," which company, it is charged, has disposed of all thereof and converted the same into other property; that all the stockholders of Company No. 1 have removed beyond the jurisdiction of the court excepting defendant Charlot; that the property and assets of "Company No. 1" which came into the hands of defendant Charlot have been by him converted into shares of the capital stock of the Ozark Cooperage & Lumber Company, which shares are in value far in excess of the amount sufficient to satisfy plaintiff's judgment, with interest and costs, and that there is no other property and assets of "Company No. 1" or "Company No. 2" which can be reached by execution or other process of law; and that by reason of the premises plaintiff is without adequate remedy at law.
The prayer of the petition is, "that the shares of the capital stock of the Ozark Cooperage & Lumber Company, above named, now held by defendant Frederick S. Charlot, to the extent that said shares may be found to have been issued to said defendant for...
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