Hammar v. St. Louis Motor Carriage Co.

Missouri Court of Appeals

Hammar v. St. Louis Motor Carriage Co.

134 S.W. 1060, 155 Mo. App. 441, 1911 Mo. App. LEXIS 248

DecidedFebruary 21, 1911

StatusPublished

This text of 134 S.W. 1060 (Hammar v. St. Louis Motor Carriage Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hammar v. St. Louis Motor Carriage Co., 134 S.W. 1060, 155 Mo. App. 441, 1911 Mo. App. LEXIS 248 (Mo. Ct. App. 1911).

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Opinion

CAULFIELD, J.

(after stating the facts). — I. The defendant’s first and chief assignment of error is directed against the action of the trial court in excluding evidence which defendant contends would have established- that the defendant was dissolved before this action was commenced. We have no hesitation in overruling this assignment. To contend that the defendant was dissolved was to say that it Avas without officers, directors or legal existence, dead and without capacity to appear by counsel. [Ford v. The K. C. & I. Short Line Ry. Co., 52 Mo. App. 439, 452, 453.] The Legislature has recognized this by providing that those who were president and ■ directors at the time of the dissolution should, as trustees, administer the estate of the dead corporation for the benefit of creditors and stockholders. [Sec. 2995, R. S. 1909.] The defendant’s attitude in appearing in court, filing an answer and offering proof of its own prior demise involved a legal absurdity. Our Supreme Court has declared that if a corporation appears to a suit, it cannot deny its own existence; that as against the corporation itself, such-appearance is conclusive evidence of its legal existence for the purposes of the pending case. [Seaton v. Chicago, Rock Island and Pacific R. R. Co., 55 Mo. 416.]

II. Nor are we able to agree to defendant’s contention that it is not a case for the appointment of a [445]*445receiver. The petition alleges, in effect, and the proof shows, that the defendant, a manufacturing corporation, has transferred all its assets and property to another, and its directors have appropriated the proceeds to their own use, leaving nothing available by ordinary process of law to satisfy plaintiffs’ judgment. By reason of such transfer and appropriation, the defendant has been incapacitated, and has ceased to transact business, and it has no place of business. Its stockholders and directors have held no meetings and its officers and directors have discontinued acting for it. They are the very ones from whom restitution must be sought. The circumstances justified the appointment of a receiver. [Glover v. Bond Inv. Co., 138 Mo. 408, 40 S. W. 110.] The judgment is affirmed and the cause remanded.

Reynolds, P. J., and Nortoni, J._, concur.

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CAULFIELD, J.

(after stating the facts). — I. The defendant’s first and chief assignment of error is directed against the action of the trial court in excluding evidence which defendant contends would have established- that the defendant was dissolved before this action was commenced. We have no hesitation in overruling this assignment. To contend that the defendant was dissolved was to say that it Avas without officers, directors or legal existence, dead and without capacity to appear by counsel. [Ford v. The K. C. & I. Short Line Ry. Co., 52 Mo. App. 439, 452, 453.] The Legislature has recognized this by providing that those who were president and ■ directors at the time of the dissolution should, as trustees, administer the estate of the dead corporation for the benefit of creditors and stockholders. [Sec. 2995, R. S. 1909.] The defendant’s attitude in appearing in court, filing an answer and offering proof of its own prior demise involved a legal absurdity. Our Supreme Court has declared that if a corporation appears to a suit, it cannot deny its own existence; that as against the corporation itself, such-appearance is conclusive evidence of its legal existence for the purposes of the pending case. [Seaton v. Chicago, Rock Island and Pacific R. R. Co., 55 Mo. 416.]

II. Nor are we able to agree to defendant’s contention that it is not a case for the appointment of a [445]*445receiver. The petition alleges, in effect, and the proof shows, that the defendant, a manufacturing corporation, has transferred all its assets and property to another, and its directors have appropriated the proceeds to their own use, leaving nothing available by ordinary process of law to satisfy plaintiffs’ judgment. By reason of such transfer and appropriation, the defendant has been incapacitated, and has ceased to transact business, and it has no place of business. Its stockholders and directors have held no meetings and its officers and directors have discontinued acting for it. They are the very ones from whom restitution must be sought. The circumstances justified the appointment of a receiver. [Glover v. Bond Inv. Co., 138 Mo. 408, 40 S. W. 110.] The judgment is affirmed and the cause remanded.

Reynolds, P. J., and Nortoni, J._, concur.

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134 S.W. 1060, 155 Mo. App. 441, 1911 Mo. App. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammar-v-st-louis-motor-carriage-co-moctapp-1911.

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