111 Mo. App. 105 | Mo. Ct. App. | 1905
This is an action on two promissory notes originally executed by the defendant to the Phoenix Loan Association of St. Joseph, Missouri. One note was given September 11, 1894, and one September 9, 1899. At the dates of the notes the said loan association was a going concern. Ricketts was a stockholder and put up, as collateral security for his notes, a certificate of stock for $1,000. On July 15,1899, H. L. Gray, State supervisor of building and loan associations, began a suit in the circuit court of Buchanan county, alleging said association was insolvent and asking that a receiver be appointed. The association filed an answer admitting the truth of the petition and joining in the prayer for a receiver; so the court appointed Henry M. Tootle and William Graham receivers. On April 2, 1901, while the proceedings for the dissolution of the corporation were pending in the Buchanan Circuit Court, an action was instituted in the circuit court of the United States for the St. Joseph division of the Western District of Missouri. This suit was brought by George A. Cowden, a stockholder in the association and a citizen of Iowa, and asked the appointment of a receiver. The Federal Court assumed jurisdiction and appointed the same receivers previously appointed by the State Court. Thereupon the judge of the Buchanan Circuit Court undertook to transfer the ' receivership to the Federal Court and relinquish jurisdiction over the property of the association. This attempt was removed to the Supreme Court of Missouri by a writ of cer
We have given only so much of the history of the litigation in which the Phoenix Loan Association became involved as is material to the present controversy. A complete resume of the various proceedings against it may be read in the reports of the decisions of the Supreme Court, the State receivership suit having been thrice before that body. [State ex rel. Gray v. Phoenix Loan Assn., 159 Mo. 102, 60 S. W. 74; State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S. W. 252; State ex rel, Beskett v. Woodson, 164 Mo. 440, 64 S. W. 774.] Each of those cases dealt with some phase of the suit in the Buchanan court for the winding up of the association. Besides that suit and the Cowden receivership proceedings, suits were instituted in Kansas and Texas for the
For the respondent it is contended that Cobe acquired no title to the notes in suit as he purchased at a sale made under an order of the United States Circuit Court, which order was void because of the pendency of a prior suit involving the same subject-matter in the Buchanan Circuit Court. A court possessing jurisdiction of the subject-matter of an action pending before it, enjoys the right to proceed to a final disposition of the controversy as against another tribunal of concurrent jurisdiction in which a similar litigation was instituted subsequently. [Bank of Bellows Falls v. R. R., 28 Vt. 470; Mason v. Piggett, 11 Ill. 88; Stearns v. Stearns, 16 Mass. 170; Home Ins. Co v. Howell, 21 N. J. Eq. 239; Sayler v. Simpson, 45 Ohio St. 141; Hawes v. Orr, 10 Bush. 432; Hardeman v. Battersby, 53 Ga. 36; McLean v. Circuit Judge, 52 Mich. 257; Ober v. Gallagher, 93 U. S. 199.] This rule is necessary in order to prevent conflicts of jurisdiction. And the rule prevails in settling between a State and a Federal Court, the right to dispose of litigation. [Sharon v. Terry, 1 L. R. A. 572, 36 Fed. Rep. 337, affirmed 131 U. S. 40; Watson v. Jones, 80 U. S. 13; Walker v. Flint, 7 Fed. 137; Davis v. Life Assn., 11 Fed. 781; Tefft v. Sternburg, 5 L. R. A. 221, 40 Fed. Rep. 2; Judd v. Telegraph Co., 31 Fed. 182; Nellson v. Robinson, 31 Fed. 631; In re Schuyler’s Boat Co., 136 N. Y. 169.] The circuit court of Buchanan county had the power to proceed with the case before it for winding up the loan association and distributing the assets through its receivers, notwithstanding the later suit for the same purpose in the national court. This was directly decided by our Supreme Court in State ex rel. Baskett v. Woodson, 161 Mo. 110, 61 S. W. 771, wherein it was held that the order, of the Buchanan Circuit Court to transfer the winding up proceedings to the Federal court and require the receivers to turn over the assets in their hands
Another proposition invoked to support the judgment below is that the notes in suit were sold to Cobe, not by the receiver who assigned them, but by Sharrit,
“That the said bid of Ira M. Cobe of eighty thous- and dollars ($80,000) for the entire assets of said association as the same were at the close of the business on the 30th day of November, 1901 — excepting cash in the hands of said receivers on that date — be accepted according to the terms and tenor of said hid, and that in accordance with the terms of said bid there shall he and is hereby sold to the said Ira M. Cobe each and all of the property and assets of the Phoenix Loan Association of St. Joseph, Missouri, of every kind and name or nature, legal or equitable, including real and personal property, choses in actions, demands, and every species of property or thing of value belonging to said association of its shareholders, or to which the receivers by virtue of their office are entitled as such receivers— excepting the cash in the hands of said receivers on the said 30th day of November, 1901.”
The decree next directed Sharrit, on payment of
It is said the certified copies of the records of the Federal Court should not have been admitted in evi- ■ dence, because they were verified by the clerk only, with no certificate from the judge that the clerk’s certificate was in due form. That point does not call for decision on this appeal, as the records were admitted on the plaintiff’s offer and the exception to the ruling was by
The judgment is reversed and the cause remanded.