Glover v. St. Louis Mutual Bond Investment Co.

Barclay, O. J. The present is an appeal taken under the amendment to section 2246 (Laws 1895, p. 91) from an order refusing to vacate the appointment of a receiver. The plaintiff is a judgment creditor of the defendant. He filed a petition in the circuit court of Jasper county in 1896 on which he asked (and the learned circuit judge ultimately granted) a receivership [416] for the purposes outlined in the prayer of the petition, which may be found in the opening statement. On considering the petition Judge Crow made an order on defendant to appear before him to meet the application for a receiver. Defendant appeared accordingly and answered, denying the allegations of the petition, and stating that the proper name of defendant was (and had been since October, 1894) the Equitable Savings Investment Company. The application for a receiver was then heard by the learned circuit judge. The petition was supported by plaintiff’s affidavit; and other testimony was submitted tending to prove various charges in the petition. The defendant offered no testimony, and the learned judge then made an order for a receiver as prayed. He afterward refused to vacate the order and the defendant appealed, after duly saving exceptions. All these steps before Judge Crow occurred in the vacation of the circuit court. The question for review is whether plaintiff was entitled to have the receiver appointed on any of the grounds indicated by the allegations of his petition. Merriam v. Railroad (1896) 136 Mo. 145 (36 S. W. Rep. 630.) 1. Under sections 2790, 2791 and 2792 (R. S. 1889) the circuit court has an extensive statutory jurisdiction (irrespective of any more ancient one in equity) to appoint a receiver for a business corporation, at the instance of a creditor, in the cases enumerated. That jurisdiction is to be “exercised as in ordinary cases” (sec. 2792), which provision, read in connection with section 2193, implies, we think, a grant of authority to the judge in vacation, as well as to the court in term, to appoint a temporary receiver (under those sections) when the occasion demands. One of the purposes for which such an appointment may [417] be made is to compel payment by any of the officers of a corporation of any money (or of the value of any property) diverted wrongfully from the corporation to their individual use (sec. 2790). A receiver appointed with that object may be authorized to sue for, and recover, any debts, demands, or property due, or justly belonging, to the corporation. The provisional order of appointment, in the case at bar, directed the receiver to so proceed. The petition before the court charges that some of the officers have appropriated to their own use funds of the corporation to the amount of thousands of dollars; and that they have been guilty of other improper acts calculated to defeat the collection of plaintiff’s demand. It is charged that there are no available assets or property of the corporation that can be reached by ordinary process of law to satisfy plaintiff’s judgment. The case made by the petition is supported by the oath of the plaintiff, and no contradictory proof was submitted tothe learned circuit judge. It seems to us that the latter was obviously right in making the appointment on such a showing. 2. But it may be appropriate (in view of some observations in the briefs) to say, at this time, that the court in lane does not deem it proper to now determine the question of plaintiff’s right, by means of the' receivership, to reach the fund or securities in the custody of the State treasurer as a deposit under the act of 1893, concerning bond investment companies (Laws 1893, p. 121). That question may arise at some subsequent stage of the suit, but we do not desire our affirmance of the judgment to be understood as a ruling upon it. The order for a receiver does not expressly purport, to affect the deposit with the State Treasurer, and it should not be construed to have such [418] an effect. Even if any part of the deposit was available for the purposes of the receivership, it ought not to be taken from the charge of its present custodian until required to be actually applied for such purposes. People v. Chapman (1876) 64 N. Y. 557; In re Guardian Mut. Life Ins. Co. (1878) 18 Hun. 115, affirmed (1878) 74 N. Y. 617. And no order to that end should be made without first affording the Treasurer opportunity to fully show the terms of the deposit and to be heard, if desired, as to the receiver’s right to take control of .any part of the deposit for the purposes of the pending suit. The Treasurer is the trustee of a statutory trust, the nature of which must be gathered from the terms of the act creating the trust. Lancashire Ins. Co. v. Maxwell (1892) 131 N. Y. 286 (30 N. E. Rep. 192); People v. Ins. Co. (1895), 147 N. Y. 25 (41 N. E. Rep. 423). It will be time enough to determine the exact limits of his duty as trustee when all the facts bearing on the subject are before the court, which they do not now appear to be. 3. One of the assignments of error on this appeal refers to certain facts put in evidence by plaintiff which defendant asserts have a tendency to show that another suit of similar purport was pending in S.t. Louis when this one was brought, and that the former is yet undetermined. Defendant, hence, argues that the appointment of a receiver in the case at bar was without authority, or at least erroneous, in view of the prior action pending. Without closely examining the facts indicating the nature and scope of the earlier action referred to, it is enough to say that, as defendant filed an answer containing only a general denial and a plea of misnomer, it can not, after the trial judge has acted on the issue thus made, raise then, for the first time, the new issue of a former action pending. Such a plea must in some wise be [419] interposed at a seasonable time. The learned judge could not have erred in ignoring that defense to the application for a. receiver when no intimation was given to him of any intent to rely on such a defense until after he had granted the application. 4. As plaintiff, on the case made by his bill, is obviously entitled to the aid of a receivership for the reasons first above given, the order of the learned circuit judge is affirmed, and the cause remanded to the circuit court for further proceedings. G-antt, Magi’ablane, and Burgess, JJ., concur. Sherwood, J., is absent, and Robinson and Brace, JJ., do not take part.