121 S.W.2d 850 | Mo. | 1938
Lead Opinion
This case, recently reassigned to the writer, is (like O'Malley v. Continental Life Insurance Company, Theodore Rassieur, Intervener,
This case is based on the same record and must be ruled on the same facts as the Rassieur case, since a preferred allowance for attorney fees and expenses in the dissolution suit was claimed on the same theory as in that case. Therefore, our ruling in the Rassieur case is decisive of this case. We hold that Mr. Pace is not entitled to have his claim against the insurance company preferred over those of other creditors.
The judgment is reversed. Ferguson and Bradley, CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All concur, except Lucas, J., not sitting.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur, except Lucas, J., not sitting. *412
Addendum
"There should be a rehearing of this case because:
"(a) The maladministration of Mr. Mays alone would properly and probably have been met by his removal;
"(b) His misconduct did not have any tendency to show the company to be insolvent, or to show that its contrary contention was advanced mala fide;
"(c) Indignation, howsoever well founded, at the things he had done, should not serve to obscure the real issue, which was and is whether the defense of the action which he caused to be made was based on an honest belief that the company was solvent; and
"(d) Finally, the finding of the trial judge, who heard both the original trial and these applications, on that precise issue should be given the weight that settled rules of decision demand."
We did not hold in this case, or in the Rassieur case, No. 34921,
The motion for rehearing is overruled.