Wehrs v. Sullivan

• Decision Date: 02 February 1909
• Citation: 217 Mo. 167,116 S.W. 1104
• Parties: WEHRS v. SULLIVAN et al.
• Court: Missouri Supreme Court

116 S.W. 1104

217 Mo. 167

WEHRS v. SULLIVAN et al.

Supreme Court of Missouri.

February 2, 1909.

Rehearing Denied March 9, 1909.

1. BUILDING AND LOAN ASSOCIATIONS (§ 42) —RECEIVERS — SUBSTITUTION OF RECEIVER— JURISDICTION.

Where the assets of a co-operative building association were in the hands of a court of equity, and its affairs were being administered by its receiver, the court had jurisdiction to remove such receiver and appoint another in his place, either on its own motion or on an intervening petition.

2. BUILDING AND LOAN ASSOCIATIONS (§ 42) —RECEIVERS — APPOINTMENT OF SUPERVISOR.

Where a final decree had been entered settling the rights of all the parties to proceedings for the dissolution of a building association, it was not necessary for the supervisor of building and loan associations to institute an independent proceeding in order to secure his appointment as receiver, but he could obtain such relief by a petition of intervention.

3. EQUITY (§ 39)—JURISDICTION — COMPLETE RELIEF.

Where equity takes jurisdiction of the subject-matter, it will retain it until a complete disposition has been made of the case, and all equities arising therefrom have been adjusted.

4. BUILDING AND LOAN ASSOCIATIONS (§ 42) —ASSETS—ADMINISTRATION—RECEIVERS.

Where, after final decree in a suit for the dissolution of a building association, the supervisor of building and loan associations intervened and was appointed receiver, his administration of the company's assets, though under the statute authorizing his appointment, must still proceed under the supervision of the court.

5. APPEAL AND ERROR (§ 150)—RIGHT OF APPEAL—INTEREST IN SUBJECT-MATTER.

Where, in proceedings for the dissolution of a building association, defendant, one of the managers, made no objection and preserved no exceptions to the final decree, which determined that he had no legal relation to the company, except as manager or trustee, he could not appeal from an order substituting the supervisor of building and loan associations as receiver for the receiver previously appointed.

Appeal from Circuit Court, St. Louis County; John F. McElhinney, Judge.

Action by Herman H. Wehrs against William B. Sullivan and another. From an order denying an application to vacate an order appointing William L. Watkins as receiver of the Home Co-operative Company, defendant Sullivan appeals. Affirmed.

This cause is presented to this court upon appeal from an order of the circuit court of St. Louis county, Mo., refusing to vacate an order appointing William L. Watkins as receiver of the Home Co-operative Company. This proceeding is but one branch of numerous legal contests concerning the assets of the Home Co-operative Company of the city of St. Louis.

The facts concerning this controversy are correctly and fully set forth in the recent case of State ex rel. v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468. This appeal being simply from an order refusing to vacate the appointment of a receiver, it is not essential to reproduce in full all the orders made during the progress of this controversy. It will be sufficient to indicate in a general way the nature and character of this legal contest: In July, 1903, one Herman Wehrs brought suit in behalf of himself and all other contract holders and creditors of the Home Co-operative Company of the city of St. Louis, Mo., against one William B. Sullivan and the Home Co-operative Company of the city of St. Louis, a copartnership, for the purpose of winding up its business and distributing its assets among its contract holders and creditors. In that action plaintiff prayed for the appointment of a receiver and the usual order of injunction. On the 3d day of July, 1905, with the consent of the defendants, upon motion for that purpose, the circuit court appointed Francis A. Tillman, who was the choice of defendants, receiver in said cause, and enjoined the said defendant company and William B. Sullivan, their agents, employés, and servants, from proceeding further with the business of said company. That, by said decree, which was entered by consent, the said William B. Sullivan and the other agents and employés of the said company were ordered to execute and deliver all deeds of conveyances of real estate belonging to said company, and to make all transfers and assignments sufficient in law to vest title in said receiver of all the assets and property of every kind and description and wheresoever situated and belonging to and in any way pertaining to the business of the said Home Co-operative Company. That said deeds of conveyances, assignments, and transfers were duly executed and delivered, as ordered, and the said William B. Sullivan was divested of all right, interest, title, and claim in and to the assets and property of the said Home Co-operative Company of every kind and description. The record discloses that there was no objection or exceptions preserved to the entry of this decree, and on October 3, 1905, a final decree was made and entered in said cause, which was made and agreed upon by the said William B. Sullivan and the said company. In said decree the court made the following findings: "That the Home Co-operative Company, was a co-partnership composed and consisting of its contract holders; that it was insolvent and had ceased to do business before the filing of said suit; that the said William B. Sullivan and his assignors never at any time occupied any other legal relation to said company than that of mere trustees or managers for said company, and, as such, conducted for it its business. It decreed and adjudicated that said copartnership be dissolved; that the order of July 3, 1905, made and entered in said cause, be in all particulars confirmed, and that said receivership and injunction, as therein granted, be confirmed and made permanent." The record fails to disclose the preservation of any exception to the entry of said final decree, and no appeal was taken from it. At a subsequent term of said circuit court, an order was entered of record ordering said William B. Sullivan and the contract holders and creditors of said Home Co-operative Company for which Tillman had been appointed receiver to appear before the court on April 7, 1906, and show cause why the judgment or decree in said cause making the injunction permanent and confirming the appointment of Tillman as receiver of said company should not be vacated and set aside. On April 7, 1907, the order to show cause was continued until April 11, 1906. At this time one William L. Watkins, supervisor of building and loan associations of the state of Missouri, filed what he termed an "interplea," asking the court to vacate and set aside the judgment or decree heretofore rendered in said cause, to remove Tillman as receiver, and appoint him, Watkins, as receiver. On the 21st day of April, 1906, and at a subsequent term of said court, William L. Watkins, supervisor of building and loan associations of the state of Missouri, was substituted as receiver for said Francis A. Tillman, who was removed and later discharged as such receiver. In and by such decree all contract holders and creditors were allowed to intervene in said cause. One of the creditors, Louis Boulter, filed his petition in said cause to be allowed to intervene in said cause, which petition was duly ordered to be allowed by said court. Said petition and order allowing him to intervene in said cause were made prior to the rendition of the final decree in said cause. An order was entered requiring said Tillman to turn over all the assets of said company to Watkins, which was done, and Watkins as supervisor and receiver took charge of the assets and representatives of value of said company. William B. Sullivan thereupon filed a motion to set aside the interlocutory decree appointing said Watkins, as supervisor, receiver of said Home Co-operative Company, which was by the court overruled, exceptions were saved thereto, and an affidavit for appeal to the Supreme Court filed, which was by the trial court denied. Said Sullivan thereupon was granted upon his application a writ of mandamus directed to the trial judge, requiring him to grant an appeal from his refusal to vacate and set aside the interlocutory order appointing said Watkins, supervisor, receiver of said Home Co-operative Company. Upon the service of the alternative writ of mandamus upon the trial judge an appeal was granted to this court, and the record upon said appeal is now before us for consideration. This is a sufficient indication of the nature and character of this controversy to enable us to determine the legal proposition involved in the proceeding.

Robt. F. Walker and Thos. C. Hennings, for appellant. King & King and R. H. Stevens, for respondent.

FOX, J. (after stating the facts as above).

The legal propositions disclosed by the record upon this appeal rest within a very narrow compass. The record discloses, and it is conceded by counsel on both sides of this case, that the appeal now before us is simply from an order of the court refusing to vacate the appointment of William L. Watkins as receiver of the Home Co-operative Company. Hence it follows that our review of the disclosures of the record upon this appeal must be limited to the action of the court in refusing the order as above indicated. The final decree made in this cause is not before us; and the proposition now confronting us simply involves the propriety of the action of the court in refusing such order.

Directing our attention to the propositions involved in this proceeding, we find upon examination that another branch of the case concerning the assets of the Home Co-operative Company was in judgment before this court in State ex rel. v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468. In that case it was sought to prohibit one of the judges of the circuit court of the city of...