*1 Relator, at the relation of Norville of Missouri I No. Judge Julius R. of Division Circuit Court Nolte, Referee, Missouri, A. Re County, St. Nolan, Louis John spondents. 38252. 169 S. 50. No. One, Division March English Nelson O’Bryen Williams, & Coil, Roland F. Cullen for relator. *2 Mitchell, Young Buckley
Thompson, Thompson & Forder R. for respondents. *4 original
DALTON, proceeding C.—This is an instituted court by filing pro- of of an writ petition alternative hibition. Relator, respondents, Brickéy, prohibit to Norville W. seeks Hon. of Nolte, Court, I, Julius No. judge R. of the Circuit Division County St. Louis cir- Nolan, appointed and John A. Referee accounting cuit judge, from proceeding equitable further in an Incorporated entitled, Festus, School School District an of District, defendant, in the plaintiff, pending W. Brickey, Norville Upon circuit County judge. court circuit of St. Louis before said filing rule petition relator, preliminary of of we issued prohibition setting out respondents thereto have made return why preliminary made absolute. our rule should not be jurisdic- (1)
Relator not have contends circuit did court equitable accounting pleadings tion to an “the order because adequate an beyond evidence had question plaintiff showed that- juris- remedy have (2) did not law”; and that the circuit court Brickey, because diction an N. W. equitable accounting to order properly been properly “he was not court” before the summoned a party into court and made defendant. County Louis pending The court of St. cause, now circuit respondent before wherein respondent, Nolte, Hon. R. Julius Circuit referee, A. in the appointed John Nolan was instituted subsequently It County of 1938. was Court December Jefferson on County. Louis County to to St. removed St. Francois and then an (1) to secure purpose suit, petition, as disclosed plaintiff, benefit of equitable (2) impose, accounting; to for the property all the constructive on trust to traced”; (3) plaintiff monies can be “into which dis- conveying,.transferring enjoin restrain said ac- complete a full and (4) require posing any property; a member by defendant counting things done all 1922; and since district president the school board all sums pay to said (5) require over said defendant claimed. amount is particular No plaintiff. found to be due said school incorporated alleged plaintiff is In it is laws of existing under the organized district Education, by a Board Missouri, governed and controlled *5 law; by provided as wit, a directors board of six school acting and duly qualified, elected, a Brickey and has been the and district of school said board of directors member of the to continuously re-elected board; he has been president of and respective has held positions 1922; the since and that said plaintiff school of board school district was authorized to and did money borrow general and issue and bonds and sell bonds to *6 plaintiff, and should plaintiff by have been turned over to the the said yet defendant, do, the defendant plain said failed so to and the tiff has never received the payments. benefit of tuition That other instances by persons checks are known to been drawn have other in favor of plaintiff by Brickey, the and endorsed the defendant N. without the plaintiff having the checks. That proceeds received of said in other plaintiff principal instances when the paid had the interest due on plaintiff maturity, bonds the at the defend their Brickey ant N. W. used personal benefit, for his for which bonds he should bonds, held to plaintiff be account to the for the use of said and furthermore, Brickey the said W. did in instances cause some plaintiff the pay retired, they interest on after said bonds been but the exact amount improperly paid plaintiff interest so th'e on the A plaintiff.” bonds theretofore retired to the is not known specific given Brickey instance is then wherein defendant N. W. used purposes $10,000 refunding his own at least out bonds $7000 being alleged held him for plaintiff and it that defendant caused is plaintiff the pay payments at a time when interest on bonds alleged should not times have been made. It is further that “at all herein Brickey, capacity mentioned the defendant N. W. in his Director and a fiduci plaintiff, occupied President of the Board of the ary trust relationship plaintiff or . . . That the towards plaintiff fully> is not now informed as exact amount is to the owing due and plaintiff N. ~W. the defendant plaintiff states that an of the true state ascertainment necessarily account plaintiff will between the said defendant investigation many involve the widely circumstances of transactions and many and the persons, diverse and with different character plaintiff plaintiff states account between the state of the complicated, complex the defendant W. and diverse. Furthermore, plaintiff’s certain material to and books records proper accounting defendant N. plaintiff between and the mislaid, destroyed, and ascertainment have been lost the true amount due from defendant N. W. plaintiff thereby been made more difficult.” has charged alleged petition plaintiff
On the basis of facts- in its remedy it adequate had no law. answered September
On defendant defendant, charged parties petition a defect of par- not made the other members of the said school board were many charged against defendant were acts ties and acts general specific further The answer contains all members. three, year five and ten pleads further statutes denials and statutory provisions. other On the same date limitation, and certain to transfer said cause to law moved the court ‘‘a theory did not state of action on docket equitable cognizance equitable accounting,” on but its face showed that adequate remedy had an at law. motion was overruled. Thereafter reply deny- filed its in said cause ing allegations pleading answer and concealment de- fendant of charged against the misconduct him. July 14, 1941, *7 On and pending undisposed while cause was and of, the disability by defendant suffered being reason of confined in the Penitentiary Missouri State year under for term. sentence two 9225, July Sec. R. S. 1939. 22, On 1941, plaintiff petitioned the circuit County, court of county Jefferson the of defendant’s Iasi resi dence, appointment for charge the of a manage trustee to take of and the Brickey estate of defendant N. W. for the reason that he was so 9229, confined. Sec. September 10, 1941, R. S. 1939. On Belle B. duly appointed was Brickey. Trustee of said N. W. estate of She, thereafter, her trustee, qualified filed consent to act such as as such, subsequently and appe'ared in the circuit court of St. Louis County in pending against Brickey. the cause Sec.
R. S. 1939. The County the Circuit Court St. records of- Louis duly cause, show she was in was, that summoned and it there after, be, is, hereby ordered “that cause and same in revived Brickey, Belle B. name of of the Estate N. Trustee of W. party place Brickey.” defendant for and in the of the said N. W. 1942,
Thereafter, 17-19, inclusive, hearing on March there in was County, said cause the said before circuit court of Louis before St. Nolte, respondent apparently upon preliminary issue as to whether See, compelled plaintiff. defendant should be to account Robert Davis, 1116(4). App. Mo. S. W. Evidence was heard thereon and the taken under cause advisement. sug heard is not before us. Plaintiff then filed a motion
evidence"so gesting release of W. Missouri Peni State tentiary 25, 1942, April alleging suspension of civil on “the ’’ rights release, pray terminated with and W. Brickey." ing against N. the cause be continued W. May 20, 1942, interlocutory the said circuit entered an On court cause, styled in- Festus, then “School District of an order in the district, defendant,” corporated plaintiff Brickey,' v. N. W. school as follows: having upon been heretofore submitted Court
“This parties, adduced the Court pleadings and evidence being fully duly having heard and considered same advised discharge N. upon suggestion premises, and in the Brickey Penitentiary, having here- from Missouri the' now full the said N. been continued tofore Decreed, Adjudged follows:” consideration, it is Ordered. .as (1) he order, defendant, N. W. be and Then follows complete plaintiff account to all a full and required to render disbursement, relating receipt, things to the use by done and disposition appropriation money, all sums of prop- erty, bonds, etc., of plaintiff, during the entire time defendant was president and member board district; (2) school taking that the of the account will involve the trial issues fact requiring long the examination account, appoint- so that ment of a desirable, (3) Referee is ap- John A. Nolan is pointed Referee to hear and decide whole issue involved and report finding to the court. Jurisdiction is retained to enter a judgment final for the definite amount found to be due for purposes may other arise. petition
Relator in his for an alternative prohibition, writ of addition to pleading foregoing attaching facts and exhibits support thereof, petition states that filed in said cause did state equity a cause of accounting necessity evidence “showed that there was no equitable accounting for an and further showed already had an accounting City audit firm of the of St. Louis, namely Jeff & Company, upon they K. Stone base their cause of action.” No plaintiff’s such audit is referred peti- *8 tion, or answer, seen, and, defendant’s we have the evidence is not before us. petition further “that
Relator’s states: order of the Court com- render pels complete accounting ; relator to a full and . . . that respondents jurisdiction equitable have no to order said account- ing petition a equity because said does not state cause of action in Court, and should have been transferred the law docket in to said petition and that the on its(cid:127) and the evidence adduced thereunder face adequate remedy law; that has an at . . shows . that he adequate remedy equity law (relator) no or in other than this has prohibition, that, in and this Court shall issue proceedings unless Judge prohibit respondent writ of prohibition its to and Referee enforcing interlocutory prohibit equi- said decree to said accounting, equitable accounting table which said order was for Judge jurisdiction any in excess and without made jurisdiction scdd of pleadings Judge make under the to filed before thereunder, irreparably adduced relator will be the evidence ’’ n injured. (Italics ours.) proceedings respondents The of answer return admits Brickey, v. N. W. here- School District of Festus in the cause of petition that' the evi- out, expressly denies or inbefore set necessity no for an there was the court that dence before showed cause accounting; failed to state equitable denies cause equitable accounting or that equity for an action in of law In connection docket. this been transferred to the have should clearly say “petition plaintiff’s forth plaintiff’s sets respondents of Mis- accounting under laws right equitable to of a discovery, the existence it in the need for shows souri fiduciary or trust relationship and complicated character accounts,” and that equitable “the nature of proceeding further appears necessity from the for the injunc- constructive trust ’’ tion. Respondents in said answer admit had an audit which “showed $47,000 plaintiff’s funds which had been handled Briekey W.N. were for only by unaccounted and could be traced complete accounting from Briekey,” said N. deny plain- but tiff’s cause was based thereon.
Respondents deny further that relator has adequate remedy no other than proceeding this prohibition; in or interlocutory equitable accounting order for an jurisdiction was in excess or jurisdiction without under pleadings filed and evidence adduced Respondents thereunder. plead further they facts base plea of right waiver relator’s apply for the writ reason of participation in matters court, before the circuit and also other facts alleged to constitute estoppel, including alleged laches facts hearing been shown have in the court, before circuit there but proof is no in they the record most these facts and are denied by the reply of relator. reply the relator further denies that N. W. has rights prohibition waived his to a writ alleges and further participated any proceedings “he has cause since said against revived Brickey, was Belle as Trustee of the Estate Brickey, of Norville W. May further states that on Judge the respondents, Nolte, attempted when one of Julius R. continue defendant, Brickey, the cause that coun sel Trustee spec Belle Estate of N. W. ifically any refused continue in said to enter ’’ appearance reply in said Relator a transcript cause. attached alleged proceedings in said circuit court it wherein conceded was that N. W. longer fact no confined the Missouri *9 Penitentiary, attorney State but that N. W. and refused appear the requiring to Briekey in after the order N. "W. was entered appears Brickey,
to account. It Belle Trustee also that B. Brickey, appeared specially of W. that of the Estate N. contend to court, Brickey, purporting order of the substitute Belle B. to W. Trustee, place in of N. had in fact released referring Counsel, in order, as cause. to said defendant stated: entirely case; him “That she comes into the case takes out of they only way go get an trustee; and the could on now is to alias Brickey) (N. Ac him W. into the lawsuit.” summons summons plain cording exhibit, respondent thereupon sustained to the Nolte N. be continued W. tiff’s motion that Brickey. B. place and Belle Trustee of W. instead of equity jurisdiction that “the real Relator insists basis of legal remedy” “plain accounting inadequacy and that suits is a adequate remedy says, must it has no at law.” prove Relator tiff that 852 (1) “plaintiff’s proved . . petition proof that . affirmative- and
ly entirely remedy (2) adequate had an law” and at for on the Company auditor Jeff K. and “was Stone stand during amount that was the trial and testified to the ease missing.” by respondents. Relator’s are denied These statements petition alleged to have been “proof,” forth the shown does set no there was which relator claims the circuit court “showed necessity the other equitable accounting.” Respondents, for an on by alleged hand, which it contended “showed facts, certain is answer remedy rem- adequate no at law and no that the School District remedy The edy reply all except respondents.” ordered alleged denies, in were shown to effect, relator these facts any is In before the circuit court circuit court. case evidence Accordingly, only pe- plaintiff’s consider not before us. we “a action of allege Did it facts sufficient show cause of tition. equitable cognizance equitable accounting” plain- and and show remedy facts adequate plain- tiff had no at law? Were the stated jurisdiction "equity invoke of a court of petition tiff’s sufficient to equitable an give jurisdiction to account- the circuit court order ing? 606, 213, (2d) 40 Dahlberg Fisse, v. 328 W. Mo. S. In the case
609, equitable put best authorities court said: “The considered this accounting grounds, three wit: The need jurisdiction an for accounts, discovery, and the complicated character of of a fiduciary given trust relation. The relief is existence or judgment accounting balance found is 613, equity 1 C. sec. 56. The taking J., the account. basis on due legal remedy. inadequacy 1 accounting C. jurisdiction in 414, Co., 274 Mo. 202 615, 58; Pump v. Star Bucket J. Johnston sec. 1143; Bayer (Mo. App.), 282 Ray v. Blower Co. Steam Soot S. W. 176; (2d) 24 It (Mo. App.), S. W. 229. W. Palmer v. Marshall S. remedy complicated particularly ac applicable mutual is a 1 a confidential or fiduci 618. sec. 63. And eases where counts. C. J. 621, See, also, ex ary J. sec. 68.” relationship exists. C. Southern, App. 229 Mo. 749. S. W. v. rel. Cockrum 902; 164; (Mo. McCluney (2d) 898, App.), 80 S. Johnston 14; 1 Am. sec. Jur. sec. J. S. C. alleged had been petition Plaintiff’s president a member of the Board of Directors of fiduciary continuously occupied he since 1922: that school district relationship plaintiff; a.nd that reason of such toward trust " charge negotiations taken he had assumed position loans, con- bond also both to banks issues execution further cerning and bonds. of said notes the retirement *10 a violation the duties charges confidence and of trust and a breach member obligations defendant,- as and a president Board, plaintiff. School
853 was, plaintiff public corporation. school district City of v. Edina, 452, Edina School District of 305 461, 112, Mo. 267 W. S. 115; Whittle, State ex inf. McKittrick 705, 709, v. 333 Mo. 63 S. W. (2d) 100. N. W. as an officer Defendant and member of occupied school board plaintiff district, fiduciary school re plaintiff. lationship to Consolidated Dist. 6 of School No. Jack County (Mo. 182, 184; son Shawhan 273 W. Bent App.), v. S. Priest, v. Mo. 482; Davidson, 445, 458, 86 Ward 89 1 475, v. Mo. S. 846, Bromschwig Carthage W. 850; v. Marble & White Lime Com 319, 334 pany, 324, (2d) 889, 892; Mo. 66 S. W. Keokuk Northern Line Company 467, 545; Packet 95 Davidson, 473, v. Mo. 8 S. W. Mfg. Corp. Yellow Acceptance Taxicabs, 1200, v. American 344 Mo. 1207, (2d) 601, 130 W. We think S. 603. stated suffi fiduciary relationship cient facts show the existence between of a any plaintiff equity and defendant. “Courts of have refused set fiduciary relationship may bounds to the of which a circumstances out fiduciary question spring,” of a relationship the existence is (2d) 769, 772; v. (Mo.), of fact. Liddell v. Lee 159 S. W. Shaw Butler (Mo. Sup.), (2d) 420, W. 78 S. unnecessary plaintiff’s peti-
It to review other facts stated tion, clearly did not know the appears but think we it Brickey. appears It further owing from defendant amount due the investi- of the amount due will involve ascertainment including expenditures gation many transactions, receipt^ many persons. with different of diverse character transactions the circuit parties” “pleadings and evidence adduced Upon the stating will neces- taking account court found “the examination sarily requiring fact the trial of involve issues long parties.” account between the adequate had position support Relator in of the (Mo. v. Marshall upon Palmer remedy particularly law relies at App. 220 Mo. Crane, 229, Bennett v. 233; 24 W. App.), S. (2d)W. Fisse, Mo. S. Dahlberg 26, 27; S. (2d)W. 974, 142 Davis, App. 235 Mo. S. 606, 609; Robert v. cases, reached we have consideration of these 1115. After a careful show petition does that plaintiff’s the conclusion We hold relator. remedy contended law, an adequate court that the circuit wholly fails show before us record accounting “under equitable to order an jurisdiction without adduced Judge and the evidence pleadings filed before . " thereunder circuit Did the presented. issue now consider We second Brickey? Relator person of Norville jurisdiction have court “in the revive the cause purporting court the order of insists that Brickey, of W. of the Estate Trustee B. name of Belle Brickey” was, N. W. place for and party as to effect, dismissal a total in force *11 and totally released him from of his disability by his that, said action, upon so the removal imprisonment from release further service of summons voluntary or appearance required bring was him be- fore the court. however, There is no suggestion, ever > dismissed the against cause any time, either before or after Belle Brickey, B. Trustee, appeared, and, was summoned and so far appears from here, pleadings record no amended were filed. Was process service of on defendant after his release from imprisonment required give jurisdiction? the court Did the pending cause abate his imprisonment? release from Was such revivor necessary? Did the order court’s involve substitution of parties directly defendant? No point authorities on issues for decision are cited parties and we have found none. Section provides B. that, death, S. “in of the case marriage -disability or other court, on party, or before third term after suggestion marriage death, disability, of such or may, motion, on against order to be continued or representative party Succeeding or successor of such in interest.” provide sections representative may how such or successor interest brought be into provides that, the case. “in all Sec. cases where a representative successor is an party or made action as herein provided, pleadings party represents he whom succeeds shall his, may be taken to be amend; which he be allowed to proceedings may against him, be had in all respects favor of or ” - original as if had party he been to an action.
Defendant after process he had been with and had served appeared in ease, disability, awit, suspension suffered of his rights by civil imprisonment a term natural for than his life. less qualified brought A appointed, trustee had been and had been case, provided defending into the statute. The trustee was originally pending against was still an suit the convict. party cause, appear in the but he could not or defend interested Thereafter, imprisonment the same. was released disability removed. apply with reference to abatement and revival not The statutes do original defending nor neither the because trustee defendant^ rights convict, suffered dis- protecting cause and have the ability. original defendant, whose interest the trustee Instead the defending, longer disability. is no under Access to the courts was question on longer whether, denied defendant. The is no to such may summons), be continued (but without further notice cause and without the further intervention defendant trustee. circuit relator misconstrues the force and effect of the
We think the
after
1942. This order was entered
order of March
court’s
of the Estate of
B.
Trustee
appointment
Belle
duly
appear and show
had been
summoned to
Brickey, and after she
“why
this cause should not be revived in the name of Belle
’’
B. Briekey,
Briekey.
Trustee
the Estate of N. W.
While the order
as entered
be,
“decreed that this
hereby
and the same
re
is,
vived in the
name
B.
Belle Brickey, Trustee of the Estate of W.N.
Briekey, as party
place
said W.
Brickey,” the
applied,
think, only
same
we
manage
to the active
ment and control of
Briekey
the defense in the cause. N. W.
*12
discharged or released
aas defendant from the cause in
he had
duly
been
summoned and had appeared. Although
all
civil
rights of
N. W.
temporarily
during
were
suspended
period
imprisonment
his
(Sec. 9225,
1939),
R.
yet
S.
he remained under
protection
9226,
the law. Sec.
R. S. 1939.
under
was
He
disability, and could not
in
appear
court or defend the pending suit,
but the plaintiff
proceed
could not
until
therewith,
a trustee was
appointed
charge
to take
manage
of and
the estate
defendant,
until the
voluntarily
trustee
appeared or
brought
was
into
suit
to defend the
Murphy
same.
v.
275 Mo.
Barron,
282,
49,
205 S. W.
51; Wamsley
Snow, 331
261,
v.
53
258;
Mo.
9229,
S. W.
Sec.
R.
By
S. 1939.
9234,
Sec.
R. S.
such
1939,
trustee was authorized to
defend all actions
against
commenced
such convict. When such trus
brought
tee
party
was
in
aas
to the proceedings,
defend the
pending against defendant N.
Brickey,
W.
it became and was the
duty of the
protect
trustee to
property rights
of the defendant
supervision
under the
McLaughlin
of the court.
v.
McLaughlin,
In of McLaughlin the case (228 635, 647), v. McLaughlin, supra Mo. this court only way said: properly “The a could made defense be through would 2 provided be trustee article terms of chapter (R. 141 1899). S. statutes, Under the trustee under these the direction of the appointing court him could see suit was properly statutory When all provisions defended. of our taken are and considered a whole, done, opinion as must be we are that they that, contemplate being when the estate of convict is attacked a by suit, a convict in a through should be court trustee his before judgment touching valid property.” could be entered his case, parties There no substitution of defendant in since was this brought in a a pending against the trustee was to defend con (Mo. (2d) 287, 289; 162 See, App.), vict. Graden v. Patrick S. W. Burger Boardman, 256, 197; 254 Mo. 162 238, v. S. W. Renfro v. 271, Metropolitan Company, App. 258, Ins. 148 129 S. Life Mo. 728, 444; Q., 721, & R. 225 Mo. Company, Redmond v. O. K. C. R. Garling 159; 1Utz, (Va.) 480; 126 S. W. Neale v. Matthews Cobb v. (S. Sup. case, supra, 84 E. In the Ct.), ton C. S. Redmond insane after in name. the institution of suit became guardian Thereafter, appointed appeared the Probate Court who prosecution and continued the party and was made original by guardian. Defendant the name cause in objected having alleged the cause revived the name of the guardian, for the not in reason defendant was court for purpose, since no appeal scire facias been it. issued On it was held parties that there had been plaintiff, substitution no no revivor, abatement and no and that scire facias to defendant was unnecessary. trustee, brought
Belle B. was was cause which into pending against Brickey. an officer She was effect court rights protect property authorized to and defend during period defendant courts denied access him Ry. Moffatt, statute. See, Company Pac. Mo. 329½; Kan. 113, 838; 55 Pac. C. J. Sec. Secs. 9234, R. S. 1939. statutory
But relator in did not effect trustee contends Brickey’s represent owner trustee, but such taking property. Sec. 9233, 1939, provides “upon While R. S. filing estate, required property, the oath rights bond ... all the imprisoned and effects convict shall be vested of such in trustee, in such others trust for the of creditors and benefit ’’ therein, might question that section terested there be some. *13 par a a applies imprisoned life, is for term than where convict less 1939, ticularly 9229, provides of which that “when in view Sec. S.R. any imprisoned in for term person penitentiary ever shall be the a manage his charge take life, trustee, less than natural to his a of ” estate, may . . . appointed be the circuit court Since term, Brickey only year a he 9225, was sentenced for two was civilly rights suspended. Sec. R. S. all civil were dead, but discharge imprison from upon 1939. provides Section 9250 all of property shall entitled to ment the released convict be his subject incurred trustee, expenses the to remaining in the hands of applies that, will be noted if Sec. 9225 It further commissions. rights merely pro no suspended, a are there is ease where civil discharge from im revesting upon in the title convict his for vision more 9229, 1939, R. S. a We think that Sec. term. prisonment the 1939, nearly 394, with R. S. with reference to corresponds Sec. the shall have curators, provides “the curator power of subject minor, super the management the estate the of to care and 395, 1939, also, provides R. court.” Sec. S. intending the control that, legal pro represent their wards in all curators shall Compare, defend for such wards. prosecute and shall ceedings beneficiary and, any case, if In was 1939. 9234, R. S. Sec. trustee, trust,” the “in N. W. property was title to.his beneficiary interested therein. a was jurisdiction per not lose court did of the the circuit We hold that, when W. was son rights upon protect him it devolved to his imprisonment, from released duly appeared) he had been summoned and (wherein in the cause
857 consequences. suffer the pending The cause was him still rights when his again civil were open restored and the courts were to him without Morton, tire intervention of a 294 trustee. Ward v. 966; 408, 242 Mo. Ry. S. W. Cole v. American Express Company, 228 App. Mo. 78, (2d) 736, S. W. 740. There was no abatement, and necessary no revivor upon was the restoration of defendant’s civil rights. Ry. Missouri Pac. (55 v. Moffatt, supra, 837, 838). Co. Pac. In Ry. Missouri Company Pac. Moffatt, supra, (55 837, Pac. 838), an infant plaintiff, age, who permitted became to con- was tinue the cause for himself and plain- as next friend for minor other tiffs after a former next friend had died. It was contended action had abated and had not been The revived. court “While said: the action of an may infant under brought by the statute be guardian or next friend, the party infant is the real proceeding. The parties infants were proceeding inception, its rights their which were belonged involved in to themselves. right next friend had subject-matter no title in. to or of the action, merely brought but protect rights court into The court in proceeding guards infant. which the pending is in- minors, terests and in the power may, exercise of its when it be- necessary, comes remove appoint one next friend and It another. that, is also when the majority during pend- true infant arrives ency may suit, record, may fact be entered and he proceed thenceforward proceedings the suit alone. formal No necessary, revive technically are as the next friend neither nor is substantially party only agency action, appears but guard the court to protect minors, interests who are real parties proceeding. to the The statute with reference to proceedings revivor application no where has there cases change friend, of next and hence there was no abatement of See, also, Deering (Texas), action.” v. Hurt S. W.
In Smith, case of New v. 86 Kan. it was Pac. that, held where the trustee for com convict had estate *14 menced an action for the benefit convict, of the convict was pardoned, thereafter released convict could be substituted plaintiff, trustee, with the consent of the and continue revivor, without and that had no interest abatement defendant the matter. ease,
Under the admitted facts further service of sum- no defendant required, mons on because the circuit court jurisdiction and, person still had rights, civil restoration of defendant’s could continue the cause against him order him account in proceedings.
We are not question concerned here mere with the notice and opportunity alleging to be heard on the motion release from im- prisonment asking that the cause be continued
Brickey, and respondents allege given that such notice was to the at- torneys for N. W. Brickey. In view of the conclusions we have reached, supra, pre
liminary prohibition rule in discharged heretofore issued is peremptory Bradley writ denied. Osdol, and Van CC., concur. PER foregoing opinion by CURIAM : —The C., adopted Dalton, opinion judges the court. All the concur. at the relation of R. B. Potashnick and Hart of Missouri Indemnity Relators, E. Company, ford Accident v. David Fulbright Judges and Robert J. Blair, James F. Smith, Springfield Appeals, Respondents. Court of 38224. 169 No. S. W. 59. One,
Division March Finch Finch & and Freeland L. Jackson for R. Potashnick B. Indemnity Company, Hartford Accident & relators. notes the public. The petition further alleged, negotiation “that the and execution of said loans, by both to the and aforesaid, banks bond issues and the as payment bonds, and retirement of said notes and and were assumed by taken charge Brickey acting of the N. defendant W. alone of the plaintiff President Board of plaintiff, the and the states plaintiff members of Board great the and trust the its officers had and in ability nego confidence the the to defendant W. tiate and handle said That loans. and in breach time, time and said trust and confidence, in violation of W. the defendant N. Brickey’s duties and obligations a President as member of and as plaintiff’s of the Board, Brickey reported the said defendant N. or represented the plaintiff Board of the that a sum or sums money required were a to meet loan of the or on plaintiff at bank outstanding bond in truth in due issue, when fact the amount as aforesaid was a lesser amount than reported the sum or sums the Board plaintiff by of the the defendant N. W. and that the relying Board of the plaintiff, the defendant W. representations due, permitted the the de amount then fendant to pay discharge plain said sum or in of the the debt of sums tiff then due, defendant, and that in breach improperly, the said of his trust, the sum or plaintiff withdrew from the funds of said sums for purpose the were paying debt, said which sum sums or in excess of the That in plaintiff amount debt. due on said other instances withdrew from the defendant N. W. plaintiff due purported paying funds of the by a loan purpose for the money, plaintiff aat bank on bond sums of issue, or sum or knowledge without when truth plaintiff, Board of in actually in due said sum or in amount fact sums were excess or com plaintiff, when have a loan plaintiff did not then coming mitment on a loan occasions the due. That on other authority Di knowledge of the Board of defendant, without the plaintiff, money rectors of name borrowed at a bank plaintiff for the District, purportedly School in behalf of plaintiff District, papers pur benefit of and did execute School but the plaintiff District, suant in the name thereto School loans, proceeds of said states it did receive the That although plaintiff ultimately paid said at the bank. loans lying other near instances various school districts paid money School the defendant N. District sum or sums of living purpose of children paying tuition paying permit so as to the attendance districts, school District, operated School children the schools to the money belonged although properly under the law said