Opinion
April 7, 1930.
1. JURISDICTION: Execution Sale: Purchase of Stock: Motion to Set Aside: Right of Corporation. Where execution was issued under a monetary judgment and the stock of a corporation, belonging to the judgment debtor, was sold by the sheriff, the corporation is only incidentally interested in a motion to set aside the execution sale, and is neither a necessary nor a proper party to such motion.
2. EXECUTION SALE: Motion to Set Aside: Parties: Notice: Appearance. On a motion to set aside an execution sale, notice must generally be given to all parties interested, those who have an interest in the sale and those who will be prejudiced by setting it aside; but notice is waived by parties who appear, and a party who appears and resists the motion cannot complain that notice was not given to other interested parties.
3. ____: ____: Transferees: Notice. Transferees of stock purchased at the sheriff's sale and later assigned to such transferees, are not entitled to notice of the filing of a motion to set aside the execution sale, in the absence of notice or knowledge on the part of the judgment debtor and movent that they are transferees of such stock; and if neither the transferees nor the purchasers notify the movent that the stock so purchased has been assigned, and the purchasers who appear and resist the motion do not allege notification to the movent, it cannot be held that the unknown transferees were entitled to be notified.
4. ____: ____: Jurisdiction. The division of the circuit court in which the judgment for divorce was rendered and out of which execution to collect arrearages in alimony issued, has jurisdiction of a motion to set aside the execution sale timely filed, and to determine the ownership of stock sold at the sale as between all parties to the motion who were properly notified or appeared.
5. JURISDICTION: Of Subject-Matter: Equity: Application to Another Court. The court which first obtains jurisdiction of the subject-matter holds it to the exclusion of all other courts of concurrent jurisdiction. Persons who are made parties to a pending proceeding, over the subject-matter of which the court has jurisdiction, or who are not entitled to be made parties, are not entitled to invoke the equity powers of another court of concurrent jurisdiction, to obtain relief.
6. ____: ____: ____: ____: Imminent Peril. The right to invoke the equity powers of a court, where another court of concurrent jurisdiction has already obtained exclusive jurisdiction of the subject-matter and is proceeding to decide the main issues, cannot be made to rest on the alleged ground that the rights of the applicants are in immediate and continuous peril and may be entirely destroyed by the adjudications in such other court, where no facts to that effect are stated, and the proceeding pending in such other court affords the applicants and all other interested parties a plenary hearing.
ALTERNATIVE WRIT QUASHED AND PROCEEDING DISMISSED.
Randolph Laughlin for relators.
(1) The relators Ford W. Thompson, Laurence D. Honig, Randolph Laughlin and the Banner Loan Company are not parties to the suit of Ford v. Ford, and could in no manner be affected by Judge Hogan's decision on the motion to set aside the execution sale in said case. McKee v. Logan, 82 Mo. 524 (2). Not being parties to the motion in Ford v. Ford, and the moving party refusing to make them parties, to give them their day in court thereon, and to accord them all the rights of litigants, including the right to take a change of venue because of the undue influence of the opposite party, or the bias or prejudice of the judge, the purchasers of the stock at the execution sale had the clear right to invoke the jurisdiction of the equity division of the Circuit Court of the City of St. Louis by reason of their "interest in the subject of the action," and in obtaining the relief demanded. R.S. 1919, sec. 1157. (2) A direction to stay proceedings in a divorce suit is not a direction to stay proceedings in an equity suit. (a) A stay of proceedings in Division 15 does not affect an independent equity proceeding pending in Division 14. (b) The entire scope and purpose of the suit pending before Judge Landwehr will be defeated, and the rights of the relators irrevocably lost, by failure to exercise jurisdiction over that proceeding promptly, while there is still time for the relief to be effective. (3) To deprive one of remedy by mandamus on the ground of an adequate remedy at law, the other remedy must be equally convenient and effective. State ex rel. v. Sale, 153 Mo. App. 273. In this case there is not only no other convenient and effective remedy, but there is no other remedy whatever. Mandamus is the only remedy to require the trial court to exercise its judicial function. State ex rel. v. Holtcamp, 255 Mo. 275. (4) A reading of the petition pending before respondent (a copy whereof is attached to the petition for mandamus herein) will disclose that unless respondent exercises his jurisdiction promptly the rights of the relators are in immediate and continuous peril, and may be entirely destroyed. Only the appointment of a receiver or the alternative of a bond to produce the disputed assets in favor of the litigants ultimately adjudged entitled thereto, can rescue the fund from peril or protect the rights of the relators with respect to it.
Earl M. Pirkey for respondent.
(1) The court which first obtains jurisdiction of the subject-matter holds it and other courts of concurrent jurisdiction decline jurisdiction of the same subject-matter. State ex rel. Sullivan v. Reynolds, 209 Mo. 161; Lumber Co. v. Harvester Co., 215 Mo. 237. (2) A court in which a judgment is rendered and to which an execution is returnable has exclusive control of its own process. Nelson v. Brown, 23 Mo. 19; Faris v. Smithpeter, 180 Mo. App. 465; Lumber Co. v. Harvester Co., 215 Mo. 257; Flynn v. Richardson, 15 S.W.2d 942. Therefore Judge Hogan has exclusive jurisdiction of the decision of the motion to set aside the sale, and if he sets aside the sale then the relators have no standing in respondent's court. (3) If Division No. 15, which is Judge Hogan's court, sets aside the execution sale, it will deprive the relators of all their claimed rights in the stock of the Banner Loan Company. Hannibal St. Joseph Railroad Co. v. Brown, 43 Mo. 297; Ray v. Stobbs, 28 Mo. 35.
Relators filed in this court their petition for a writ of mandamus to compel the respondent, a judge of the Circuit Court of the City of St. Louis, to hear and determine a certain suit in equity filed in said court and assigned to the division over which he presided. An alternative writ issued and respondent filed his return. The relators filed a reply and motion for judgment.
This is a companion case to State ex rel. Bertha E. Ford et al. v. Hogan, ante, page 1130, No. 29,851, currently decided. The facts are similar.
The pleadings develop that, in 1926, Bertha E. Ford was granted a divorce from Louis E. Ford. On December 12, 1928, arrearages in alimony had accumulated in the sum of $600. On that day an affidavit for execution was filed. On March 14, 1929, a sale under execution was had and certain shares of stock belonging to Louis E. Ford were sold to Bertha E. Ford and her attorneys, Laughlin and Honig. On the first day of the April term, 1929, the sheriff filed his report of the execution sale. On April 16, 1929, an unverified motion to set aside said execution sale was filed. On May 17, 1929, relators filed suit in the circuit court, alleging that they were purchasers and owners of the stock and prayed for the appointment of a receiver. Relators aver that Louis E. Ford filed a motion in the suit between him and Bertha E. Ford to set aside the execution sale to defeat and defraud them. A verified motion to set aside the execution sale was filed on May 25, 1929, by Louis E. Ford.
In view of the jurisdiction of Division 15 of the Circuit Court of the City of St. Louis, presided over by Judge Hogan, to determine the motion to set aside the execution sale, and concurrently the ownership of stock in said company (State ex rel. v. Hogan, ante page 1130, currently decided), the question for determination is the right of respondent to take jurisdiction to appoint a receiver for the Banner Loan Company.
I. The pleadings show that Bertha E. Ford and Laughlin, her attorney, at the execution sale purchased jointly the shares of stock sold. The shares of stock thereafter were Corporation apportioned to Bertha E. Ford, Laughlin and Honig. as Party. Later Laughlin, it is alleged, transferred fifty shares to one Laumeier, and Laumeier transferred said fifty shares to relator Thompson.
Relators' position is that, as Thompson, Honig, Laughlin and the Banner Loan Company were not parties to the suit of Ford v. Ford in Division 15 of the St. Louis City Circuit Court, the aforesaid persons could not be affected by Judge Hogan's decision on the motion in said case to set aside the execution sale.
The Banner Loan Company, a corporation, issued the stock owned by Louis E. Ford. Thereafter Bertha E. Ford and Laughlin purchased said shares of stock at the execution sale. We are unable to see how the Banner Loan Company, except incidentally, could be affected by a decision of Judge Hogan on the motion to set aside the execution sale. The said motion could not affect any right the Banner Loan Company had, for it was not directly interested in the result of the motion to set aside the execution sale. Its only possible interest, if that may be called an interest, was its concern as to the legal owners of its stock. The litigation before Judge Hogan merely involved the right to and the ownership of stock in said corporation. The Banner Loan Company was neither a necessary nor a proper party to said litigation.
Generally, on motion to set aside an execution sale, notice must be given to all the parties interested, those who have an interest in the sale and those who will be prejudiced by setting it aside. Consequently, generally speaking, Bertha E. Ford, Laughlin, Honig and Thompson were entitled to notice of Parties: the filing of the motion. However, notice is waived by Notice. appearance or by failure to object at the proper time. And a party who appears and resists the motion cannot complain that notice was not given to other parties. [23 C.J. 684, pars. 677, 678.] The pleadings show that Laughlin appeared as an amicus curiae to the motion and resisted it, and furthermore that Bertha E. Ford appeared by her attorney, Honig, and filed an affidavit for a change of venue as to said motion. Consequently Bertha E. Ford, Laughlin and Honig will be held to have entered their appearance to said motion and to have waived notice.
Neither Laumeier nor Thompson, we think, were entitled to notice, in the absence of notice to or knowledge on the part of Louis E. Ford that they were transferees of the stock purchased by Laughlin. Neither the relators nor Laumeier notified Louis E. Ford that the stock had been transferred or assigned, for, if that had been done, relators would have alleged such notification. There is no allegation in the pleadings that the books of the corporation were accessible to Louis E. Ford, or that they showed a transfer of the stock. How was said Ford to know of the transfer of said stock or to whom it was transferred without notice to him? Under the facts in this case, it would be a denial of justice to hold that an unknown transferee of corporate stock was entitled to be notified of the filing of the motion. Hays v. Cassell, 70 Ill. 669, supports our conclusions.
II. Relators' second contention reads: "Not being parties to the motion in Ford v. Ford, and the moving party refusing to make them parties, to give them their day in court thereon, and to accord them all the rights of litigants, including Equitable the right to take a change of venue because of the Proceeding. undue influence of the opposite party, or the bias or prejudice of the judge, the purchasers of stock at the execution sale had the clear right to invoke the jurisdiction of the equity division of the Circuit Court of the City of St. Louis by reason of their interest in the subject of the action, and in obtaining the relief demanded."
It is clear, however, that Division 15 of the Circuit Court of the City of St. Louis, then presided over by Judge Hogan, had jurisdiction of the motion to set aside the execution sale (City of Aurora ex rel. v. Lindsay, 146 Mo. 509, 48 S.W. 642), and that that was a plenary action to determine the ownership of the stock in litigation. As the motion to set aside the execution sale was filed at the return term, it was filed in time to invest Division 15 of said circuit court with jurisdiction of the subject-matter. [Norman v. Eastburn, 230 Mo. 168, 130 S.W. 276; State ex rel. v. Wessell, 237 Mo. 593, 141 S.W. 883.] As we have held, relators either entered their appearance or were not entitled to notice. This gave the court jurisdiction of the parties. Consequently a court, which has jurisdiction of the subject-matter and the parties, in which a judgment was rendered and to which an execution was returnable, has exclusive control over its own process to determine the validity of the execution sale and the ownership of the stock sold thereat. [Flinn v. Richardson, 15 S.W.2d 914.] Everyone taking title under the process of the court must be understood as taking subject to the power of the court to set aside the proceeding for cause shown. [Ray v. Stobbs, 28 Mo. 35.] The court first obtaining jurisdiction of the subject-matter holds it to the exclusion of courts of concurrent jurisdiction. [State ex rel. v. Reynolds, 209 Mo. 161, 107 S.W. 487; Beekman Lumber Co. v. Harvester Co., 215 Mo. 221, 114 S.W. 1087.]
III. Relators finally complain that unless respondent exercises his jurisdiction promptly, the rights of the relators are in immediate and continuous peril and may be entirely destroyed. Although the pleadings state conclusions that intimate the preceding results may occur, they state no fact to Irretrievable that effect. There may be instances in which a Injury. trial court would be justified, during the pendency of a motion to set aside an execution sale, where the ownership of shares of stock are in litigation, in appointing a receiver for the corporation issuing the shares of stock, but we need not discuss the matter further than to say that the motion to set aside the execution sale in the present instance affords all parties a plenary hearing.
It follows that Division 15 of the Circuit Court of the City of St. Louis, first having obtained jurisdiction, has exclusive jurisdiction of the subject-matter and the power and right to determine the ownership of the stock sold under execution. Our alternative writ is therefore quashed and the proceeding dismissed. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.