St. Louis Trust Co. v. Vincent

77 Mo. App. 76, 1898 Mo. App. LEXIS 496

• Court: Missouri Court of Appeals
• Decided: November 29, 1898
• Status: Published

Opinion

Bond, J.

statement

The St. Louis Wrecking Company, a corporation, made a general assignment for the benefit of its creditors to plaintiff on February 11, 1896. Among the assets so conveyed were the unpaid liabilities of defendant and other stockholders of the insolvent corporation. Plaintiff inventoried the assets conveyed to it and qualified and entered upon ,the discharge of its duties as assignee, collected the other assets, but made no attempt to collect the unpaid liability of the stockholders, allowed demands, paid out thereon dividends of fifty-four per cent, applied for and received its discharge from the court wherein the assignment was conducted. Thereafter John Gilliam, one of the creditors of the corporation, moved for judgment against defendant as the holder of unpaid stock. A demurrer to his motion was sustained. At a subsequent period of the court plaintiff moved the court to set aside the order discharging plaintiff as assignee and to reopen the assignment for further- administration and for the collection of the unpaid liability of defendant and other stockholders. The court sustained this motion, whereupon the plaintiff brought the present action to recover from such stockholders enough to pay the existing allowed demands against its assignor, amounting to $421 and costs of collection, alleging in its petition that no call for payment of this stock had been made by the board of directors of its assignor, and praying the court in the exercise of its chancery powers to order a call of fifteen per cent on such unpaid stock liability, to be applied when collected to the payment of the allowed demand set out in the petition.- Defendant Vincent, who was president of the insolvent corporation, and a large owner of its shares, for answer to the petition set up the fact of plaintiff’s discharge as assignee at a term of court prior to that when the order setting aside such discharge was made, as a bar to this action. The reply averred the facts hereinbefore stated. The evidence established the averments of the pleadings. The court decreed an assessment of $630 or $1.05 on each share of the stock in the name of defendant and other stockholders. Defendant appealed to this court.

P2ourtto ¿open assignment.

All concur.

The first question to be solved is, did the discharge of the assignee at one term of the court disable it from setting aside such discharge at a later term of the court ? The discharge of an assignee for the general creditors of the assignor is regulated by statute, where the proper procedure is pointed out and authority given tó the court to discharge the assignee, and to require him to surrender into its custody all assets remaining in his hands, to be kept “in such courts and its clerk’s office, subject to its future control and disposition.” R. S. 1889, sec. 461. It is clear from the language quoted that the discharge of the assignee is merely his personal release from any further duties imposed by the assignment, coupled with an approval of his administration as far as it has gone. In other words, there is a cessation of his duties as an active trustee. The trust itself is not extinguished, but continues in full force and vigor, and to that end the statute places its subject-matter (if any assets remain) in the custody of the courj for future control and disposition. These characteristics of a discharge of an assignee under the statute differentiate it from an ordinary final judgment inter partes. The latter can not be set aside nor modified at a term subsequent to its rendition except in the statutory mode and for statutory causes, or by petition impeaching it for fraud in its procurement. In the matter of the discharge of an 'assignee as for a performance of his trust there is no adverse vestiture of rights. The order of discharge inures only to his advantage by releasing him from obligations incurred by his acceptance of the assignment. It stands to reason, therefore, that he can reassume the duties from which he was released by the previous order of the court, whenever he can satisfy that tribunal of the necessity for a further administration of the trust, — for the trust being alive and its assets in the hands of the court, is clearly within the power of that tribunal to appoint a new trustee to carry out his provisions, or what is the same thing, to reimpose, at his request, upon the old trustee the duties of further administration. The point has been ruled thus by the supreme court in a recent ease where an assignee was. permitted two years after his final discharge to assert his title to assets, discovered thereafter, for which purpose it was held, the trust was properly reopened by order of the circuit court. St. George’s Church v. Branch, 120 Mo. 226. That ruling undoubtedly settles the power of the circuit court to reopen an assignment and set aside the discharge of the assignee at a subsequent £erm< The only difference between the case stated and the one under review is in the facts relied on to authorize the reopening of the assignment. In the ease cited it was done to permit an administration of a newly discovered asset. In the case before us it was done for the purpose of administering an asset not before administered. The creditors, who are the only parties concerned, are as much interested in a full administration in the one ease as the other, for the matter of concern to them is collection of the asset, not when it was discovered. We therefore hold that the court did not err in reopening the assignment in this case to enable the assignee to collect the unpaid stock liabilities set forth in its petition. Neither was there any necessity of notice to defendant of the motion to that effect. The defendant was not a party of record to the assignment proceeding. Such proceedings are conducted upon the motion of the assignee and under the surveillance of the court, and while all parties in interest may prosecute appeals from certain orders and decrees made by the court in the course of administration, yet they are not required to be brought into court by notice or summons, in order to validate the orders of the court made during the course of administration. The only notice required by an assignee of his intention to apply for a discharge, is by general publication to that effect. R. S. 1889, secs. 460, 461, 462 and 463. Appellant insists that the present suit should have been brought to compel the board of directors to make a call upon the stockholders, to pay enough on their liability as such to satisfy the balance of the allowed demands. This proposition is untenable. The corporation had ceased business and turned over its assets for administration by the court, hence it was clearly competent for the court in its exercise of its equity-powers to enforce the collection of the trust fund committed to its hands. Washington Savings Bank v. Butcher’s and Drover’s Bank, 107 Mo. loc. cit. 143; Hatch v. Daner, 101 U. S. 205. The decree in this case is affirmed.