State ex rel. Kohn v. Horner

Black, J. — It appears from the pleadings in this canse that Kohn recovered judgment againstthe Butchers’ and Drovers’ Bank of St. Louis on the seventh of April, 1881, for $6,000. Simmons, administrator of Tucker, recovered judgment against the same defendant on the same day for $10,880. Executions were issued in both cases on the twenty-fifth of April, 1881, and returned molla bona. These judgment creditors allege that Mr. Hill held stock in this corporation, upon which there was an unpaid balance of $5,000. Both parties plaintiff moved for execution against Mr. Hill on February 28, 1883. The Simmons motion came on first for hearing, and an order for execution against Hill was made on the tenth of December, 1883, from which he appealed, and at the same time gave a supersedeas bond. The Kohn motion was heard by Judge Horner on the twenty-ninth of February, 1884, and on the twenty-eighth of April following, he made an order staying the proceedings in that case of his own motion, until the Simmons case was decided on the appeal taken by Mr. Hill. It appears from the return that on the hearing of the Kohn case the entire record in the Simmons case was put in evidence. From this we see the motion and proceedings as far as they had progressed in the Kohn case, were in evidence and before the court in the Simmons case, so that cause was determined with full knowledge- of the pendency of the other. The execution awarded was for the full amount found due on the stock. It was suggested that this was because of the decision in State Savings Association v. Kellogg et al., 63 Mo. 542. That was a suit based upon what is now section 745, Revised Statutes. The liability of the corporation was not fixed by any previous judgment, and of course it was an original proceeding. Whether the priority of the creditors in this [603] proceeding, which is under section 736, after the liability of the corporation is fixed, should be regarded as in the nature of an equitable garnishment, and the priority be determined from the date of the motion and notice thereof, we are not at liberty to consider. It is a self-evident proposition that the payment of this fund once by Mr. TTill ought to be a full and complete discharge of his liability for the unpaid balance upon his stock, if any in fact he holds. A stay of proceedings was sometimes allowed where parties and causes of action were the same. 1 Tidd’s Prac. 528 ; 2 Wait’s Prac. 619. But this was'done upon motion of one of the parties litigant. 1 Tidd 488. Un-der our code of procedure the defendant may plead as many defences as he may have, so they are consistent, whether they be in bar or go to the merits, or whether they defeat the action out and out, or for the time being. Pacts which occurred since the institution of the suit may be pleaded by answer or reply. These proceedings in question are summary by motion only, and may be met in a like way without formal pleadings. It was competent for the court to order the money to be brought into court on the execution awarded, to the end that the priorities might be settled with the claimants. The court may deal with these motions as the justice, equity and right of the parties may seem to it to demand. Trial courts do, and of right ought to, have much discretion reposed in them with respect to the conduct, trial and time of disposition of causes, and so we have held at this term in State ex rel. v. Adams, ante, p. 310, but we are not prepared to establish the proposition now contended for, i. e., that the court of its own motion may order a stay of proceedings in this cause to await the final result in the other. Peremptory writ of mandamus is awarded. Sherwood, J., dissents. The other judges concur.