163 Mo. 625 | Mo. | 1901
This is a suit in equity to foreclose a mortgage executed by the defendants, Julia W. Blow, William T. Blow, Jr., and Benjamin E. Blow, dated the seventeenth day of September, 1889, conveying to the said Edwin Curd “all their right, title and interest in a certain trade-mark for eyesalve which was duly registered in the patent office of the United States by William T. Blow of St. Louis, Missouri, and recorded in the patent office, and declared to be in force for thirty years from the twenty-fifth of February, 1873, which said trade-mark is numbered 1142 and is for the exclusive right for the manufacture and sale of T. L. Stephens’ Chemical Eye-salve, as also all our right, title, and interest in the patent, and proprietary right in and to T. L. Stephens’ Chemical Eye-salve,” to secure the payment of eight promissory notes of that date executed by the said defendants, payable to the said Curd, seven of them each for the sum of three thousand dollars, payable in eighteen months, two, three, four, five, six and seven years, respectively, and the other for four thousand eight hundred and seventeen dollars and sixty-four cents, payable eight years after date, all bearing interest at the rate of eight per cent compounded annually, and all of which, together with said mortgage, and “the secret formula or recipe according to which
“That said defendants last aforesaid, the mortgagors, are without means, except the income of said business, and are not financially responsible, and that a deficiency of judgment against them could not be collected on execution by any process at law or in equity except out of said income, and that outside of said income each and all of said defendants, plaintiffs’ mortgagors, are insolvent.
“Plaintiffs further state that said defendants last aforesaid will, about June 20, 1898, receive from said Ballard, under said contract, large sums of money for said salve, as in said contract provided, which plaintiffs believe and allege they will appropriate to their own use as aforesaid, as they have been
“Plaintiffs further state that they are informed and believe that said defendants last aforesaid, their mortgagors, are about to manufacture large quantities of said salve, prepared with said trade-mark attached thereto as aforesaid, and sell the same under the credit of said trade-mark, in violation of their said contract with Ballard and out of the ordinary course of the business, and in violation of the rights of plaintiffs under and hy virtue of the said mortgage from them, and from and arising out of said default and the filing of this bill, with the
“Plaintiffs further say that said defendants last aforesaid, the mortgagors, threaten to make known said secret formula to others and thus destroy the exclusive right, now existing in said ■defendants and mortgaged by them, to manufacture and sell said salve made according to said formula, and thereby and by representations that the title to the exclusive right to use said trade-mark is not conveyed by said mortgage, to destroy the value of said trade-mark and said mortgaged property for the liquidation of their indebtedness to plaintiffs secured by said mortgage by destroying its value to the purchaser under said mortgage. And plaintiffs are informed and believe they will do so unless restrained by the order of this court.
“Plaintiffs further state that, notwithstanding said defendants last aforesaid, said mortgagors, have continuously from September 22, 1891, to August 16, 1897, recognized and acknowledged their said indebtedness secured by said mortgage as a valid and subsisting obligation against them, and made, between said dates, the payments aforesaid thereon, yet plaintiffs
“Plaintiffs further state that by the said acts and doings of said defendants, Julia W. Blow, William T. Blow, Jr., and Benjamin E. Blow, said mortgagors aforesaid, they are without an adequate remedy at law, and are threatened with irreparable loss by said defendants through the same in the great and irreparable depreciation of their security, now insufficient to pay them, and loss of the moneys, income and profits arising therefrom after the filing hereof, and irreparable injury to the exclusive and other rights conveyed as such security by said mortgage to them, unless a receiver is appointed by this court to take possession of all the property covered by said mortgage to them, and to continue to manage, control, conduct and keep up said business and receive all moneys, income and profits arising from said business and becoming due therefrom after the date of the filing of said bill; and unless said defendants last aforesaid, and each of them, and their agents and servants, be enjoined and restrained from further conducting said business of manufacturing said salve according to the formula, or using said trade-mark, or any essential part thereof, and from receiving and collecting any money coming due under said Ballard contract after the filing of this bill, or other money, income or profit in anywise arising therefrom and from in anywise interfering with or obstructing the receiver of this court, or his agents, or servants, in carrying on, conducting, managing, controlling and keeping up said business and in receiving and collecting all said moneys, income and profits, arising from said business after the filing hereof, and from doing in anywise, either directly or indirectly, any of the things com
“Wherefore, plaintiffs pray,” etc.
Then follows a prayer at great length for an accounting, an adjustment of the equities of all the parties in the property, for a foreclosure and sale, and a distribution of the proceeds according to the respective rights and interests of the parties, and in the meantime for a temporary injunction and the appointment of a receiver.
The petition was duly verified by affidavit and on the day it was filed the plaintiffs made application for a temporary injunction and the appointment of a receiver as therein prayed for, and thereupon the following proceedings were had:
“Now on this day come the plaintiffs in the above entitled cause by their attorneys, Dawson and Garvin, and make ex parte application to the court for the appointment of a provisional receiver and a temporary injunction upon the facts alleged in the petition filed herein, duly verified by the affidavit of Edwin Curd. And the bill having been read, the court does consider and adjudge that it appears from the facts stated in the bill that there is impending a danger of irreparable loss, and that the security is insufficient and that a provisional receiver and temporary injunction against the defendants Julia W. Blow, William T. Blow, Jr., and Benjamin E. Blow should be granted plaintiffs to secure them against said loss and other irreparable injury until the said defendants have an opportunity to come in and the matter of appointing a receiver and granting an injunction pendente lite, as prayed, may be adjudicated upon full proof.
“Now, therefore, it is considered, ordered and decreed by this court that a receiver be appointed, and Beverly A. Dyer is hereby appointed receiver hereunder to take possession of the trade-mark, T)r. T. L: Stephens Celebrated Chemical Eyesalve,’ and every substantial part thereof described in the
“This appointment is, however, ordered and decreed subject to the right of said defendants to come in at any time upon due notice to plaintiffs and move to set'aside or modify this order upon full hearing and proof.
“It is further considered, ordered and decreed by this court that the defendants, Julia W. Blow, ¥m. T. Blow, Jr., and Benjamin E. Blow, be and they are hereby enjoined and
“It is further ordered, considered and decreed by this court that the defendant, James E. Ballard, be and he is hereby enjoined by the temporary orders of this court from paying over any money to said Julia W. Blow, Wm. T. Blow, Jr., and Benjamin E. Blow, or either of them, or to anyone except the receiver herein on account of said salve sold and delivered or to be sold and delivered to him under his contract with said defendants.
“It is further ordered and decreed by this court that the plaintiffs may at any time hereafter come in and move the court to broaden this order either in respect to the appointment of a
“It is further ordered by the court that upon plaintiffs giving bond in the sum of ten thousand dollars with surety to be approved by the court, the said order is made by the court.
“Thereupon plaintiffs present a bond in the sum aforesaid, with Lincoln Trust Company as surety, which said bond is approved by the court and filed.”
The restraining order as recited, was duly served by the sheriff June 11, 1898, on Benjamin E. Blow and on Frederick W. Mott and James E. Ballard, June 13, 1898, and on July 9, 1898, court adjourned to court in course.
Afterwards, on the sixteenth day of September, 1898, the defendants, Julia W. Blow, William T. Blow and Benjamin E. Blow, filed their demurrer to the petition, the grounds of their demurrer being as follows:
“First. There is no equity on the face of the bill.
“Second. Said suit can not be sustained in manner and form set forth, because the said parties named as plaintiffs therein can not sustain or maintain their suit in a joint action, as plaintiffs.
“Third. Said mortgage is null and void and does not convey any of the property or money named and sought in said petition to be seized and appropriated to the payment of the notes therein named and the satisfaction of said mortgage.
“Eourth. Said petition or complaint does not state facts sufficient to constitute a cause of action.”
And on the same day said defendants filed their motion to dissolve the temporary injunction and vacate the order appointing a receiver. At the ensuing October term of the court no action was taken in the case, but at the December term thereof, on the eighteenth of January, 1899, the demurrer was considered by the court and overruled, and on the same day the court
Afterwards, on the twenty-third of January, 1899, the separate answer of defendants Mott and Lueders was filed by leave of court, and afterwards on the twenty-eighth of January, 1899, the separate answer of Julia W. Blow, William T. Blow and Benjamin E. Blow was filed without leave.
Afterwards, on the twenty-eighth of January, 1899, the said defendants, Julia W. Blow, William T. Blow and Benjamin E. Blow, filed another motion to dissolve the temporary injunction and to vacate the order appointing a receiver, which motion was on the sixth of February, 1899, overruled, and no exception taken to the order overruling said motion.
Afterwards, on the ninth of February, 1899, the following affidavit was filed:
“Benjamin E. Blow, one of above defendants, for himself and as agent for Julia W. Blow and William T. Blow, Jr., being duly sworn, makes oath and says that the appeal prayed for in the above entitled cause is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court overruling the motion to vacate order appointing receiver in above entitled cause upon petition and answer. “Benjamin E. Blow.
“Subscribed and sworn to before me this ninth day of February, A. D. 1899. “Henry Troll, Clerk.”
Thereupon, without any motion for new trial, review or in arrest, the appeal to the Supreme Court as prayed for in said affidavit was on that day allowed.
Afterwards, on the seventeenth day of February, 1899,
If such be the rule in cases where the propriety of the order appointing a receiver by the lower court is really before the appellate court on proper exceptions taken to the appointment, what can be before the appellate court for review in a case such as this, where no such exceptions were taken or saved in the lower court, and when the sufficiency of the petition on which the appointment was made was virtually conceded by the appellants, at least for the purposes of a trial on the merits in that court, by their answering over, after their demurrer had been overruled ? It would seem, that in such case there can. be nothing before the appellate court for determination, unless it be the question of the jurisdiction of the trial court to make’ the order. And as it is beyond question that the circuit courts in this State are courts of equity, having general original chancery jurisdiction, of which they are not shorn by the statute providing for the foreclosure of mortgages (Brim v. Elerning, 135 Mo. 597; Hannah v. Davis, 112 Mo. 608; Wolff v. Ward, 104 Mo. 146; McClurg v. Phillips, 49 Mo. 315) ; and as the jurisdiction of such courts in the matter of the appointment of receivers over mortgaged property for the protection of mortgagees, or in aid of suits for - the foreclosure thereof is well established, and has been exercised by them from time immemorial (High on Receivers (3 Ed.), sec. 639; Beach on Receivers, p. 38, sec. 4; Edwards on Receivers, 356; Jones on Mortgages, secs. 1516 to 1534) ; and as all the defendants appeared and submitted themselves to the jurisdiction of the court, there can, also, be no question but that the court had jurisdiction of the persons and of the subject-matter of the