Wilson v. Benedict

90 Mo. 208 | Mo. | 1886

Norton, J. —

This is a suit by Samuel J. Wilson, ■assignee of a partnership, consisting of James B. Me-. lone, Charles Q-. Epperson and John Shepherd, against Charles EL Benedict, Richard A. Melone and James. B. Melone, also a partnership, and which was, at the time this suit was brought, insolvent, and its assets in the hands of a receiver, Charles Stewart. After the suit was brought some of the creditors of the last named, firm, as'well as its receiver, were allowed to defend against the claim of the assignee, Wilson.

The plaintiff’s action is one at law and was brought to recover from the firm of Benedict, Melone & Company, the amount of certain bills of exchange and. acceptances. Some of the creditors of the defendant firm werevallowed to defend against the claim, and in their answer, after denying the liability of said firm, set up that their claim having accrued prior to the appointment of Stewart as receiver of the firm of Benedict, Melone & Company, that plaintiff was not entitled to share in the money and property in the-hands of said receiver, but that the same should be distributed to the bona fide partnership creditors. The-answer of the receiver, besides being a general denial,' set up that the bills of exchange sued on were wholly without consideration, and that this was known to plaintiff ’ s assignor and that they had paid nothing for them.

On the trial, judgment was rendered for plaintiff' for the amount of the bill sued on, in which judgment it is provided that Stewart, the receiver of the firm of Benedict, Melone & Company, should not pay out of the assets of said firm any part of the judgment till after all the allowed claims of all the other creditors of said firm had been paid, and that, after the payment of them, whatever, if anything, remained, should be applied in payment of the judgment. From this judgment, plaintiff prosecutes a writ of error and claims it to be erroneous because the payment of his judgment by Stewart, the receiver, was postponed till after the claim's of all other creditors allowed by him had been fully satisfied.

On the other hand, it is claimed by defendants, none of whom appealed, that it appeared from the petition tnat J. B. Melone was common member of the plaintiff firm suing its assignee, and of the firm sued, and that, by reason thereof the petition was not sufficient to support any judgment whatever. If the petition disclosed the above fact on its face it would undoubtedly have been subject to demurrer, as it seems to be well settled that in an action at law a party cannot be both plaintiff and defendant; or, in other words, that a party cannot sue .and recover a judgment against himself. Faulkner v. Faulkner, 73 Mo. 339. The claim that the petition .shows this is based on the bare fact that a person by.the name of J. B. Melone is a member of the plaintiff firm, and that a person by the name of J. B. Melone is also a member of the defendant firm of Benedict, Melone & Company. The rule that, from identity of name identity •of person may be presumed, has no application in this case, and cannot be extended so far as to uphold as an inference that when a plaintiff sues a defendant having the same name as that of plaintiff, that both persons are one and the same person. The record before us presents .an action at law, pure and simple, and the judgment rendered is clearly erroneous in that it undertakes to adjust the equities of the creditors of the' defendant firm by postponing the payment of the judgment.

For this reason the judgment will be reversed and the cause remanded, when the pleadings can be so .amended as to call into exercise the equitable powers of the court and the rights of the parties settled on equitable principles.

All concur.