175 Mo. App. 26 | Mo. Ct. App. | 1913
Plaintiff, defendant in error here, brought suit in the Stoddard County Circuit Court on August 6, 1910, against the Alf. Bennett Lumber Company, plaintiff in error, upon certain claims, theretofore assigned to plaintiff, for work and labor performed for the firm of Chas. M. Fletcher & Son. The petition contains twenty-three different counts, the first count thereof, omitting formal allegations, being as follows:
“Plaintiff for cause of action states that on or about the months of July and August, 1909, Charles*28 M. Fletcher and Robert U. Fletcher were copartners in business at the’ county of Stoddard, in the State of Missouri, under the firm name and style of Charles M. Fletcher & Son, and under such name and style were engaged in the business of sawing, manufacturing and marketing hardwood lumber.
“That on or about the-day of August, 1909, the business and operations of said firm were closed out and suspended by the action of creditors of said firm, in this, that the lumber, sawmill and appliances belonging to said firm were taken possession of by Mills Brothers and the Bank of Bernie, creditors of said firm, under and by virtue of two chattel mortgages given to said creditors by said firm prior to said last mentioned date, and all of said property of said firm sold to satisfy said mortgages.
“That prior to said sale, defendants, the said Alf. Bennett Lumber Company, took into their possession lumber belonging to said firm of Charles M. Fletcher & Son, sold the same for a large sum of money, to-wit, the sum of two thousand dollars, and that defendants have retained and still retain in their possession said sum of money, under the claim that the said Charles M. Fletcher & Son were indebted to said defendants.
“That at the time said defendants took into their possession said lumber, the said Charles M. Fletcher & Son were indebted to one J. M. Lane for work and common labor done and performed in and upon said lumber in and about said sawmill in the sum of thirty-six and 93/100 dollars.
“That said work and labor was done within six months prior to the taking possession of said lumber by defendants and is and was a preferred and prior claim against the property and assets of said Charles M. Fletcher & Son, to any debt or claim of defendants against said Charles M. Fletcher & Son.
*29 “That on the 10th day of September, 1909, the said J. M. Lane duly assigned in writing his said claim to this plaintiff.
“Wherefore, plaintiff asks judgment for said sum of thirty-six and 93/100 dollars.”
Each of the twenty-two succeeding counts was substantially the same as that above, differing only in the name of the person by whom the work and labor was alleged to have been performed,' and the amount due therefor.
Continuing, the petition set out in fnll a notice alleged to have been served on defendant, September 24,1909, stating the amount claimed to be dne plaintiff as assignee of the twenty-three claims sued upon, spec-' ifying the nature of the work performed by said laborers and when performed, calling attention to section 3187, chapter 26, Revised Statutes of Missouri 1889 (now Sec. 2188, R. S. 1909), and reciting that the business of Charles M. Fletcher & Son had been suspended by the action of creditors, and calling upon the defendant to pay said claims because of the alleged fact that certain lumber had been transferred to the defendant which had been manufactured at the sawmill of Charles M. Fletcher & Son with the labor of the various persons who had assigned their claims to this plaintiff.
The defendant filed no answer or other pleading to said petition, and on October 3, 1910, during the September term of the circuit court, the cause was heard by the court without a jury and judgment entered for plaintiff for the total amount of the claims sued upon, to-wit, $735.36.
Thereafter on November 4, 1910, and at the same term of court, the defendant, limiting its appearance for the purpose of the motion, moved the court to set aside the judgment theretofore entered for the reasons, as alleged, that the defendant corporation had never had any office'or agent for the transaction of its usual
Thereafter this motion was by the court overruled, and the defendant, plaintiff in error here, brought the case to this court by a writ of error.
The cause of action attempted to be stated in the petition is predicated upon section 2188, Revised Statutes 1909, which is as follows:
“Employees and laborers preferred creditors.— Hereafter when the property of any company, corporation, firm or persons shall be seized upon by any process of any court of this State, or when their business shall be suspended by the action of creditors, or be put into the hands of a receiver or trustee, then in all such cases the debts owing to laborers or servants, which have accrued by reason of their labor or employment, to an amount not exceeding one hundred dollars to each employee, for work or labor performed within six months next preceding the seizure or transfer of such property, shall be considered and treated as preferred debts, and such laborers or employees shall be preferred creditors, and shall be first paid in full; and if there be not sufficient to pay them in full, then the’ same shall be paid to them pro rata, after paying costs. Any such laborer or servant desiring to enforce his or her claim for wages under this article shall present a statement under oath showing the amount due after allowing all just credits and set-offs, the kind of work for which such wages are due, and when*31 performed, to the officer, person or court charged with such property, within ten days after the seizure thereof on any execution or writ of attachment, or within thirty days after the same may have been placed in the hands of any receiver or trustee; and thereupon it shall be the duty of the person or court receiving such statement to pay the amount of such claim or claims to the person or persons entitled thereto, after first paying all costs occasioned by the seizure of such property, out of the proceeds of the sale of the property seized: Provided, that any person interested may contest any such claim • or claims, or any part thereof, by filing exceptions thereto, supported by affidavit, with the officer having the custody of such property; and thereupon the claimant shall be required to reduce his claim to judgment before some court having jurisdiction thereof before any párt thereof shall be paid.”
It will be seen that this section gives a preference to laborers “when the property of any company, corporation, firm or persons shall be seized upon by any process of any court of this State, or when their business shall be suspended by the action of creditors, orbe put into the hands of a receiver or trustee.”
It is further provided that to enforce any such claim the laborer shall present a statement thereof, under oath, “to the officer, person or court charged with such property, within ten days after the seizure thereof on any execution or writ of attachment, or within thirty days after the same may have been placed in the hands of any receiver or trustee.” The statute then provides that such claim shall be payable ‘‘out of the proceeds of the sale of the property seized.”
A reading of the statute makes it clear that it was intended to apply only when the property of a debtor has been seized or impounded under some process of court (as by attachment, execution or the appointment of a receiver), or is in the hands of some one as a
Plaintiff’s theory is that the petition states a cause of action against defendant, under the statute, when it alleges that the business of Charles M. Fletcher & Son had been suspended by action of creditors and that the defendant took possession of and sold certain lumber of the firm of Charles M. Fletcher & Son, in payment, as is averred, of a debt due it. Plaintiff’s theory is that the defendant then became the “person . . . charged with such property,” within the meaning of the statute. This theory however is untenable, for the reason, that it was evidently not the purpose of the statute to give to a laborer or servant, having a claim against his employer for wages, a right of action against a third person, such as defendant here, who may have in some manner come into the possession of certain property of the employer. The statute gives a priority to labor claims, providing specifically what steps shall be taken by the holders of such claims in order to secure a preference under the statute. These provisions relate solely to the administration of the property of the employer, and the distribution of the proceeds of the sale thereof, after it has been seized upon by the process of a court, or has come into the hands of some officer or person, within the contemplation of the statute, for the purposes indicated by the act. In Fitzgerald v. Meyer, supra, it is pointed out that the statute does not cover the taking possession of such property by a mortgagee “but seems to point alone to the cases where the property is seized under process of court, such as in attachment, execution or the appointment of a receiver, or to cases where the property is transferred to a trustee.”
It is evident that the word “person” as used in that portion of the statute providing that one desiring
The point that the court below acquired no jurisdiction over defendant corporation, and the questions therein involved and which are discussed in the briefs, need not be touched upon. Inasmuch as the petition
For the reasons given above, the judgment of the circuit court is reversed.
