Denison-Gholson Dry Goods Co. v. Simmons

227 S.W. 855, 207 Mo. App. 524, 1921 Mo. App. LEXIS 201

• Court: Missouri Court of Appeals
• Decided: February 14, 1921
• Status: Published

Opinion

BBADLEY, J.

This cause originated n a justice of the peace court. Plaintiff sued on a note of $100 dated April 1, 1915. The defense was payment. . The defendant lost in the justice court and appealed to the circuit court where on trial before the court and a jury verdict and judgment ágain went for plaintiff, and defendant appealed. Defendant challenges the sufficiency of the evidence to support the verdict, and also-assigns as error the refusal of the trial court to permit him to prove on motion for new trial that at the time of the institution of the suit, and at the time of the trial, plaintiff was a bankrupt and its estate was then being administered in bankruptcy in Cairo, Ill. As to the defense of payment plaintiff’s evidence was that no part of the note had been paid, while defendant’s evidence tended to show that he should have had some credit on the note. The note drew interest at seven per cent from date, and the verdict of the jury was returned on April 8, 1919, for $100, allowing no interest. There is a substantial evidence to support the verdict and the assignment that the evidence is not sufficient to support the verdict and judgment is ruled against defendant. ,

In his motion for a new trial defendant as one of his grounds stated: ‘ ‘ That plaintiff since the institution of said suit has been forced into bankruptcy, and could not maintain a suit for itself while in bankruptcy. ” The record discloses that on motion for new trial defendant offered to prove “that plaintiff was a bankrupt and that its estate was being administered in a Federal bankrupt Court at Cairo, Alexander county, Illinois, prior to the institution of this action covering all the proceedings in' this cause and at this time.” This offering was rejected and defendant sav.ed his exception. Under the Federal bankrupt act the trustee in bankruptcy is vested by operaion of law with the title of the bankrupt to all rights of action arising upon contract. [Beechwood v. Railroad, 173 Mo. App. 371, 158 S. W. 868; Palmer v. Welch et al., 171 Mo. App. 580, 154 S. W. 433; Mfg. Co. v. Shoe Co., 192 Mo. App. 113, 180 S. W. 396.] An adjudication in bankruptcy places the bankrupt’s property in the custody of the law, and that court has exclusive jurisdiction of the property as against the State court. [Lumber Co. v. Harvester Co., 215 Mo. App. 221, S. W. 1087.] In his motion for new trial defendant says in effect that plaintiff since the institution of this cause has been adjudged a bankrupt, and then on the hearing of this motion he offers to prove that pribr to the institution of the cause plaintiff was adjudged a bankrupt, and that the bankrupt estate was still in process of administration. No mention of bankruptcy proceedings was made in the trial. The cause was first filed in the justice court October 20, 1917. The cause was tried in the circuit court April 8, 1919, some more than a year and five months after the case was filed in the justice court. The transcript of the justice was filed in the circuit court March 9, 1918, hence the cause was pending in the circuit court a year and one month before. trial, and was continued from time to time. The trustee in bankruptcy, if such existed, is making- no demand for the note sued on. If bankruptcy proceedings existed which would have divested the circuit court of jurisdiction to try this cause defendant failed to make such showing. We do not believe that on the meager showing in this record touching bankruptcy proceedings that we should interfere with the judgment rendered. The judgment is therefore affirmed.

Farrington, J., concurs. Cox P. J., sitting.