Wilson v. Benedict

• Decision Date: 06 December 1886
• Citation: 2 S.W. 283,90 Mo. 208
• Parties: WILSON, Assignee, etc., v. BENEDICT and others.
• Court: Missouri Supreme Court

2 S.W. 283

90 Mo. 208

WILSON, Assignee, etc., v. BENEDICT and others.

Supreme Court of Missouri.

December 6, 1886.

1. JUDGMENT — INVALID — JUDGMENT IN COMMON-LAW ACTION — ADJUSTING EQUITIES.

In an action at law, pure and simple, a judgment undertaking to adjust the equities of defendant's creditors by postponing the payment of the judgment to their claims will not stand.

2. ACTION OR SUIT — PARTIES — PLAINTIFF AND DEFENDANT — IDENTICAL NAME.

The bare fact that the same name appears among the parties plaintiff and also among the parties defendant on the face of an assignee's petition, does not uphold an inference that the plaintiff and defendant, so described, are one and the same person.

Error to circuit court, Jackson county.

Dobson & Douglass and Adams & Stubenrauch, for plaintiff in error. Karnes & Ess and Tomlinson & Ross, for defendant in error.

NORTON, J.

This is a suit by Samuel J. Wilson, assignee of a partnership consisting of James B. Melone, Charles G. Epperson, and John Shepherd, against Charles H. Benedict, Richard A. Melone, and James B. Melone, also a partnership, and which was at the time this suit was brought insolvent, and its assets in the hands of a receiver, Charles Stewart. After the suit was brought some of the creditors of the last-named firm, as well as its receiver, were allowed to defend against the claim of the assignee, Wilson.

The plaintiff's action is one at law, and was brought to recover from the firm of Benedict, Melone & Co. the amount of certain bills of exchange and acceptances. Some of the creditors of the defendant firm were allowed to defend against the claim, and in their answer, after denying the liability of said firm, set up that their claim, having accrued prior to the appointment of Stewart as receiver of the firm of Benedict, Melone & Co., that plaintiff was not entitled to share in the money and property in the hands of said receiver, but that the same should be distributed to the bona fide partnership creditors. The answer of the receiver, besides being a general denial, set up that the bills of exchange sued on were wholly without consideration, and that this was known to plaintiff's assignor, and that they had paid nothing for them.

On the trial, judgment was rendered for plaintiff for the amount of the bill sued on, in which judgment it is provided that Stewart, the receiver of the firm of Benedict, Melone & Co., should not pay out of the assets of said firm any part of the judgment till...