Wittich v. Wittich
| Decision Date | 13 June 1924 |
| Docket Number | No. 18297.,18297. |
| Citation | 263 S.W. 1001 |
| Parties | WITTICH v. WITTICH. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Hugo Grimm, Judge.
"Not to be officially published."
Action by George A. Wittich against Harry C. Wittich. From judgment of dismissal, Plaintiff appeals. Reversed and remanded, with directions.
Clyde W. Wagner, of St. Louis, for appellant.
Lubke & Lubke, of St. Louis, for respondent.
Plaintiff brought this suit to recover $186.72, alleged to be due him from the defendant for money had and received by the defendant for the use of the plaintiff. The suit was commenced before a justice of the peace, and was taken by appeal to the circuit court of the city of St. Louis, where the cause was dismissed for want of jurisdiction, and from which dismissal this appeal has been taken.
The statement filed in the justice court is as follows (omitting caption and signatures):
"Plaintiff states that the defendant, Harry C. Wittich, on the 1st day of March, 1921, was indebted to the plaintiff in the sum of one hundred and eighty-six dollars and seventy-two cents, then and there had and received by the said defendant for the use and benefit of the plaintiff, which sum is still due and unpaid, for which amount plaintiff prays judgment with interest and costs."
The facts in the case are undisputed.. It appears that the defendant is the trustee of an express trust under the will of his father, Henry Wittich, and that the plaintiff is a beneficiary under said will. It further appears that the defendant is also trustee of the Henry Wittich Carriage & Wagon Company, having been appointed by the stockholders of said company to wind up the affairs of said company and to liquidate its assets. The capital stock of this company was divided into 80 shares, of which the plaintiff owned 6 and the estate of Henry Wittich 54.
The money alleged to be due and sued for consists of two separate items, to wit: $119.52 claimed to be due plaintiff from the trust estate created under the will of Henry Wittich, deceased, and $57 claimed to be due plaintiff from the said trust estate of he Henry Wittich Carriage & Wagon Company.
At the time of the institution of this suit the trust estate under the will of Henry Wittich was in the course of administration, and no final settlement or accounting of said trust estate had been made, but the defendant had rendered to plaintiff a statement, dated February 28, 1921, showing the moneys collected and disbursements made in administering said estate. This statement shows that there is a balance due from the plaintiff to the defendant, as trustee under the will of Henry Wittich, amounting to $32.88; that the trustee's administration of the assets of the estate has not yet been completed; and that it is not a final account. A credit is allowed the plaintiff, in the statement, for $119.52, being plaintiff's share of rents collected belonging to the estate of Henry Wittich, deceased. The statement, however, contains charges against the plaintiff for rent due from the plaintiff to defendant, as trustee, amounting to more than the said allowed credit.
Plaintiff's case is partly bottomed upon the credit allowed plaintiff by the defendant in the aforesaid statement. His contention is that the charges against him are not proper charges, and should be ignored. With respect to this item of $119.52, it is clear that this suit would involve an accounting, which is a strictly equitable proceeding, and over which a justice of the peace could have no jurisdiction. R. S. 1919, § 2720; Newberger v. Friede, 23 Mo. App. 633; Rankin v. Fairley, 29 Mo. App. 593; Johnson v. Stephens, 107 Mo. App. 634, 82 S. W. 192; Small v. Speece, 131 Mo. App. 519, 110 S. W. 7; Seeser v. Southwick, 66 Mo. App. 371.
In addition, the evidence is undisputed that the trust is still open and continuing, and that the accounts of the trustee have not been settled, or a balance found due the plaintiff from the trustee. Under these circumstances an action at law for money had and received, as trustee under the will of Henry Wittich, will not lie against the trustee. Frost v. Redford, 54 Mo. App. 345, loc. cit. 252; Zeideman v. Molasky, 118 Mo. App. 106, loc. cit. 119, 94 S. W. 754; 2 Perry on Trusts and Trustees, § 843, p. 1381; Hill on Trustees, 851; Rusted v. Thomson, 7 App. Div. 66, 39 N. Y. Supp. 972.
Coming to the second item claimed to be due plaintiff from the said trust...
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