Watkins v. Donnell

189 Mo. App. 617 | Mo. Ct. App. | 1915

ALLEN, J.-

This is a suit for the appointment of a receiver for the assets of the Donnell Manufacturing Company, a corporation, and for the dissolution of such corporation, though the appeal involves only the ruling of the trial court upon a motion of this ap^ pellant seeking to have the court set aside its judgment respecting the matter hereinafter referred to, and for leave to intervene.

The court appointed a receiver for the assets of the corporation, and thereafter a referee was appointed to hear and determine the claims of creditors. It appears that on December 20, 1912, the referee filed his report as to the claims of creditors, among other things recommending for allowance a claim of John W. Donnell, one of the defendants herein. Thereafter on January 22, 1913, an intervening petition was filed in said cause by the holder of an unsatisfied judgment against Donnell, the petition averring that Donnell was insolvent and praying that the court direct the receiver to pay over to the intervener any dividends which might become payable to said Donnell on the latter’s claim against the assets of the corporation. Thereafter, on February 1, 1913, another intervening petition was filed, the intervener asserting a claim to a one-sixth part of the recommended allowance to Donnell under an alleged assignment of so much of said claim, in payment for legal services, and alleging that said assignment antedated the judgment of the other, said intervener.

Thereafter, on February 11, 1913, the court affirmed the report of the referee, allowed the claim of Donnell against the property in the receiver’s hands, and having heard the evidence adduced thereupon, also sustained the intervening petitions above mentioned and ordered the receiver to pay to said interveners, in the proportion of five-sixths and one-sixth thereof respectively, any dividends payable on the allowed claim of Donnell. And on February 14, 1913, the court overruled the receiver’s motion for a new trial in respect to said matters.

Thereafter, on February 15, 1913, this appellant, Chas. W. Bartlett, filed a motion to set aside the order aforesaid directing payment to the above-mentioned interveners, and praying for a “new trial” and for leave to file an intervening petition in order that he might he heard as to his rights in the premises. This motion the court overruled; and the propriety of this ruling is the matter here in dispute.

The motion sets out that appellant, a resident of Illinois, is the assignee of a two-thirds interest in the above-mentioned claim of Donnell; that the assignment was made in good faith and for a valuable consideration, and antedated the judgment of the intervener to whom five-sixths of the dividends on such claim had been awarded. It is then stated that owing to appellant’s advanced age and poor health he relied upon Donnell, as his agent, to take the necessary steps to establish his claim; that Donnell gave to the receiver due notice of the assignment, of which appellant was advised, and that appellant then relied entirely upon Donnell to protect his interests in the premises. It is averred that Donnell was represented in the litigation by the attorney who afterwards intervened as the assignee of a one-sixth interest in the Donnell claim, and that he (Donnell) being advised by said attorney that the giving of notice> to the receiver of the assignment was sufficient to protect appellant’s interest, and believing that said attorney was attending to the matter, took no further action in the premises. It is averred that “during the months of December, 1912, January and part of February, 1913,” Donnell was sick and confined to his home, and was unable to communicate with an attorney to represent appellant until on or about February 5, 1913, when he was advised by his said attorney to get other counsel to represent appellant; that “a day or two following the filing of the referee’s report” Donnell became sick, and did not know of the court’s action in the premises until after engaging another attorney on- February 12, 1913.

Under the circumstances we think that we should not interfere with the ruling of the court below. The matter was one resting to a great extent in the sound judicial discretion of the trial court, and its action should not be set aside except for a manifest abuse of that discretion. The principle involved is much the same as in cases where it is sought to have a default judgment set aside. That is to say, a¡t least, that there should be both a showing of proper diligence, and of a meritorious claim. But there are more potent reasons for upholding the court’s action in the premises than would exist were it a case where the court refused to set aside a default judgment upon a like showing as to diligence. Appellant was not a party to the proceeding, but sought to intervene therein, i. e., to become, by leave of court, a party thereto for the protection of a right or interest alleged to be affected thereby. The general rule is that one coming in as an intervener must take the case as he finds it, and cannot delay the trial of the cause; and that intervention comes too late after trial begins, and a fortiori after, judgment. [See 17 Am. & Eng. Ency. of Law (2 Ed.), 185; 11 Enc. Pl. & Pr., 510, 503.] In some States the matter is regulated by statute; but though it is not so.regulated, it would appear that a judgment should not be set aside to permit an intervention except for the most cogent reasons, if indeed such practice should be tolerated at all.

Here both appellant and his said agent knew of the pendency of the proceeding; and the latter was a party thereto and in a position to keep in close touch with the litigation. No good reason appears for not making a timely application for leave to intervene. The motion shows, upon its face that despite the alleged sickness of the agent he had ample opportunity to take steps to protect whatever interest appellant may have had. Furthermore it seems that appellant by having-left it entirely to his alleged assignor (the original owner of the claim and who was prosecuting it in his own name)' to see that his interests were protected, may well be held to have waived any right to intervene at the late hour when leave was sought therefor. [See Meissner v. Meissner, Intervener, 68 Wis. 336.]

Other phases of the matter need not he discussed.The judgment is affirmed.

Nortoni, J., concurs, Bey-' nolds, P. J., not sitting.