Walker v. Ozark Cooperage & Lumber Co.

• Decision Date: 03 June 1919
• Docket Number: No. 19474.,19474.
• Citation: 212 S.W. 881,278 Mo. 403
• Court: Missouri Supreme Court
• Parties: WALKER v. OZARK COOPERAGE & LUMBER CO. OF NEW JERSEY.

212 S.W. 881

278 Mo. 403

WALKER v. OZARK COOPERAGE & LUMBER CO. OF NEW JERSEY.

No. 19474.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Suit by George W. Walker, doing business as the Walker Stove Company, against the Ozark Cooperage & Lumber Company of New Jersey. A demurrer was sustained to the petition, and plaintiff appealed to the St. Louis Court of Appeals, which tribunal certified the case to the Supreme Court. Case retransferred to the St. Louis Court of Appeals.

This is a suit in equity, by which plaintiff seeks to have satisfied out of the property held by the defendant corporation a judgment for $1,646.01, rendered in his favor in the federal court against the predecessor of the defendant corporation.

The trial court sustained a demurrer to the plaintiff's petition, and an appeal was taken by him to the St. Louis Court of Appeals. That court, having doubt as to its jurisdiction of the appeal, certified the case here. 179 S. W. 948.

After the case reached this court the respondent filed a motion here to remand the cause to the St. Louis Court of Appeals. This motion was ordered to be taken with the case, and should be now determined before proceeding further.

The facts bearing upon the question of jurisdiction are stated in the opinion of the Court of Appeals, from whim we quote as follows:

"The petition inter alia alleges that plaintiff obtained a judgment in the United States Circuit Court for the Eastern Division of the Eastern Judicial District of Missouri in the sum of $1,646.01 against the Ozark Cooperage Company, a Missouri corporation. The petition does not disclose the date of the rendition of such judgment, though it is averred that the suit in which the same was rendered was instituted on February 23, 1905, the defendant therein, referred to in the petition as `Ozark Cooperage Company No. 1,' transferred its assets to the Ozark Cooperage Company of St. Louis, Mo., referred to in the petition as `Ozark Cooperage Company No. 2,' likewise a Missouri corporation. And it is alleged that there was a `pretended dissolution' of the original corporation. It is averred that the latter was `at the time of said pretended dissolution * * * a large and prosperous corporation, having assets of more than $50,000 over and above its liabilities.' Further allegations are made with which we are not now concerned, and it is then alleged that later Ozark Cooperage Company No. 2 transferred all of the assets obtained by it from Ozark Cooperage Company No. 1 to Ozark Cooperage & Lumber Company of New Jersey, a New Jersey corporation, which had been licensed to transact business in the state of Missouri.

"It appears that all of the said corporations were originally named as defendants, as well as certain individuals alleged to have been officers and directors of the three companies, but that the suit was dismissed as to all defendants except the Ozark Cooperage & Lumber Company of New Jersey, respondent herein.

"The petition charges that the transfers of the assets aforesaid were without consideration, and were fraudulently made by the officers and directors of said corporations for the purpose of hindering, delaying, and defrauding the plaintiff. And it is alleged that the assets of the two Missouri corporations have been fraudulently `intermingled and commingled,' so that the same `cannot be disentangled, separated, reached, or set apart by the ordinary process of law,' but that the sum of $7,000 was on deposit in the National Bank of Commerce of St. Louis to the credit of the Ozark Cooperage & Lumber Company of New Jersey at the time of the filing of the petition. The prayer of the petition is as follows:

"`Wherefore, plaintiff prays that this court will order, decree, and appoint one receiver for said Ozark Cooperage Companies Nos. 1 and 2, respectively, and said Ozark Cooperage & Lumber Company of the State of New Jersey, to impound all the assets of said companies and to disentangle all the assets of all of said companies and take charge of the affairs of said three corporations, and apply, out of the assets of said Ozark Cooperage Company No. 1, now intermingled as aforesaid,...