Opinion
NOTE: Opinion filed at May Term, 1938, August 8, 1938; motion for rehearing filed; motion overruled at September Term, September 6, 1938.
1. JURISDICTION: Subject Matter: Waiver. The question of jurisdiction of the subject matter may be raised at any stage of the proceedings, even by motion after judgment and for the first time in the Supreme Court.
A court obtains jurisdiction of the subject matter by operation of law, and cannot acquire it by appearance, answer, contesting the proceedings, consent, waiver, or by the doctrine of equitable estoppel.
The jurisdiction as to subject matter of any suit cannot be waived in any manner and a judgment in such case is null and void and may be set aside, even in a collateral proceeding.
2. JURISDICTION: Subject Matter. Jurisdiction is the right to adjudicate the subject matter in a given case and there are three essentials; first, the court must have cognizance of the class of cases to which the one to be adjudicated belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue.
Where an unsecured creditor of a cemetery company filed a suit asking the appointment of a receiver, if the judgment appointing the receiver was mere error, the judgment was valid there being no motion to revoke the appointment filed, but since the petition for a receivership wholly failed to state a cause of action then the judgment appointing a receiver was absolutely void and subject to collateral attack.
Where the holder of a note secured by a deed of trust on the property of a cemetery company brought suit to foreclose and afterwards intervened in a suit brought by the cemetery company to enjoin the foreclosure and the two actions were consolidated, and afterwards an unsecured creditor of the cemetery company brought suit to have a receiver appointed, to which the cemetery company filed answer and the secured creditor filed an answer and cross-bill the court did not have jurisdiction to appoint the receiver since there was nothing in the answers after the consolidation that would supply any defects in the receivership petition.
That the parties in interest had agreed to the appointment of a receiver did not relieve the court from looking at the question of jurisdiction.
Where a petition is a suit for the appointment of a receiver only and asks no other relief it does not state a cause of action unless authorized by statute. There is no such thing as an action brought for the distinct purpose of appointing a receiver; to justify the appointment it is essential that some proper final relief in equity be asked for in the bill which will justify the court in proceeding with the case.
A court of equity has inherent power to appoint a receiver to take charge of the property and affairs of a corporation only when such appointment is ancillary to and in aid of an action pending for some other purpose, and for which there is a prayer for some final relief which the court has jurisdiction to grant. Absent a cause of action in the main case there is no case pending.
3. JURISDICTION: Receiver. The court was without jurisdiction to appoint a receiver in a suit by an unsecured creditor to recover a money judgment.
The fact that a secured creditor intervened did not cure the defect since the receiver was appointed before the intervention.
4. JURISDICTION: Injunction. Where the holder of a mortgage on cemetery property began a foreclosure proceeding and the cemetery company filed suit to enjoin the foreclosure proceeding, and the holder of an unsecured debt brought suit against the cemetery company asking for a receiver, and where said cases were consolidated although the power of sale in the deed of trust was void it could be foreclosed by a court of equity where all rights growing out of the matter could be protected.
Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.
REVERSED AND REMANDED ( with directions).
Gossett, Ellis, Dietrich Tyler, John D. Strother, Duvaul P. Strother, Rufus Burrus and Lucian Lane for appellant.
(1) The expenses of the receivership, the costs of litigation and allowances to the receiver and receiver's attorneys cannot displace the mortgage lien of appellant for the reason that the petition, the so-called creditor's bill in equity, did not state facts sufficient to confer upon the court jurisdiction to appoint a receiver. The appointment of the receiver was unnecessary and wrongful and being made without jurisdiction of the court was void. No costs or allowances in favor of the receiver or his attorneys to be paid out of the property involved can be made as a consequence of such void appointment. (a) There is no such action as one merely for the appointment of a receiver. Launeier v. Sun Ray Products Co., 330 Mo. 542, 50 S.W.2d 640; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; Price v. Bankers Trust Co., 178 S.W. 745; State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. v. Ross, 122 Mo. 435; Cantwell v. Lead Co., 199 Mo. 1; Pullis v. Pullis Iron Co., 157 Mo. 565. (b) A simple unsecured contract creditor cannot confer jurisdiction upon the court to appoint a receiver. Miller v. Perkins, 154 Mo. 629, 55 S.W. 874; Pusey Jones Co. v. Hanssen, 261 U.S. 491, 67 L.Ed. 763; Lion Bonding Surety Co. v. Karatz, 262 U.S. 77, 67 L.Ed. 871. (c) All of the essential facts for the appointment of a receiver were lacking in the so-called creditor's bill. Bushman v. Bushman, 311 Mo. 551; Blades v. Mercantile Co., 154 Mo. App. 350. (d) An appointment of a receiver in excess of the jurisdiction of the court is void ab initio. Miller v. Perkins, 154 Mo. 629, 55 S.W. 874; Laumeier v. Sun Ray Products Co., 330 Mo. 542, 50 S.W.2d 640; State ex rel. v. Dearing, 187 Mo. 647; Rees v. Andrews, 169 Mo. 197; State ex rel. Calhoun v. Reynolds, 207 Mo. App. 149, 289 Mo. 586, 233 S.W. 483. (e) No allowances can be made to a receiver or his attorneys as a consequence of a void appointment. Bushman v. Barlow, 328 Mo. 90, 40 S.W.2d 637; Miller v. Perkins, 154 Mo. 629; St. Louis, etc., Railroad v. Wear, 135 Mo. 230; Lion Bonding Surety Co. v. Karatz, 262 U.S. 640, 67 L.Ed. 1151; Finneran v. Burton, 291 F. 37; Noxon Chemical Products v. Leckie, 39 F.2d 318; Fulp v. McCray, 21 F.2d 951. (f) The receivership will be declared void at the instance of this appellant, a mortgage lien-holder, though a stranger to the original suit when filed, since his rights are materially affected. Miller v. Perkins, 154 Mo. 629, 55 S.W. 874; State ex rel. Calhoun v. Reynolds, 207 Mo. App. 149. (2) The vested contract mortgage lien of the appellant Harbin, recognized and established by this court in the first appeal, is prior and superior to claims for allowances of the receiver and receiver's attorneys, and to the receiver's expenses and costs, and cannot be displaced or destroyed by subordinating it to the allowances made to receiver and his attorneys and the general costs incurred by the receiver in the operation of the business or the conduct of litigation. Commonwealth Finance Corp. v. Mo. Motor Bus Co., 252 S.W. 372; Bradford v. Cooledge, 103 Ga. 753, 30 S.E. 579; Buckworth v. Whipple, 115 Ga. 484, 41 S.E. 1010; Walter v. Peninsula Cut Stone Co., 9 Del. Ch. 374, 82 A. 961; Ferris v. Chic-Mint Gum Co., 14 Del. 232, 124 A. 577; Lane v. Washington Hotel Co., 42 A. 697; Link Belt Machinery Co. v. Hughes, 174 Ill. 155, 51 N.E. 179; Moore v. Lincoln Park, 196 Pa. 519, 46 A. 857; Frick v. Fritz, 124 Iowa 525, 100 N.W. 513; Ephraim v. Pacific Bank, 129 Cal. 589, 62 P. 177; Ritter v. Arizona Cattle Co., 34 Ariz. 278, 271 P. 25; Hilmes v. Moon, 168 Wn. 222, 11 P.2d 253; Thomsen v. Cullen, 196 Wis. 581, 219 N.W. 439; Craver v. Greer, 107 Tex. 356, 179 S.W. 862; 1 Tardy-Smith on Receivers (2 Ed.), sec. 258, p. 613; 1 Clark on Receivers (2 Ed.), sec. 641, p. 886; Am. Engineering Co. v. Met. By-Products Co., 280 F. 677; MacGregor v. Johnson-Cowdin-Emmerich, Inc., 31 F.2d 270.
Borders, Borders Warrick for respondent.
(1) Since the appellant, Louis A. Harbin, filed no supersedeas bond to stay the order and judgment of the court, then the sale made under said order and judgment to H.H. Halvorson cannot be upset. Sec. 1022, R.S. 1929; 35 C.J., p. 82; Rorer on Judicial Sales (2 Ed.), pp. 63, 241, secs. 132, 576; Burgess v. O'Donoghue, 90 Mo. 299, 2 S.W. 303; Shields v. Powers, 29 Mo. 315; Castleman v. Relfe, 50 Mo. 583; Vogler v. Montgomery, 54 Mo. 577; Sidwell v. Kaster, 232 S.W. 1005; Evans v. Kahr, 60 Kan. 719, 57 P. 950; Canal Steel Works v. One Drag Line Dredge, 48 F.2d 212; State ex rel. Winkleman v. Westhues, 269 S.W. 379; Mills v. Green, 159 U.S. 651, 40 L.Ed. 293; Fugel v. Becker, 2 S.W.2d 743. (2) All of the questions raised by appellant have been decided by this court in a prior appeal, therefore this court will not on this appeal again consider those matters. Mullins v. Mt. Saint Mary's Cemetery Assn., 259 Mo. 142, 168 S.W. 685; Baker v. K.C. Ft. S. Ry. Co., 147 Mo. 140, 48 S.W. 838; Chapman v. K.C. Ry. Co., 146 Mo. 481, 48 S.W. 646; Scott v. Parkview Realty Co., 255 Mo. 76, 164 S.W. 532; Hickman v. Link, 116 Mo. 123, 22 S.W. 472. (3) The question of the validity of the appointment of the receiver cannot now be raised by appellant in this court. Rumsey v. Peoples Ry. Co., 144 Mo. 175, 154 Mo. 215; Greeley v. Provident Savs. Bank, 103 Mo. 212; State ex rel. Conners v. Shelton. 238 Mo. 281. (4) The appointment of the receiver was valid and the court had full jurisdiction to appoint said receiver. (a) The petition of complainant, the answer of the defendant. The United Cemeteries Company, and its consent to the appointment of a receiver, were sufficient to give the court jurisdiction and the appointment of the receiver was valid. Bushman v. Bushman, 279 S.W. 122, 311 Mo. 551; Leahy v. Mercantile Trust Co., 247 S.W. 396, 296 Mo. 561; Jefferson City Bridge Transit Co. v. Blaser, 300 S.W. 778, 318 Mo. 373; Potter v. Whitten, 142 S.W. 453, 161 Mo. App. 118; State ex rel. Ballew v. Woodson, 161 Mo. 444; Guilbert v. Kessinger, 173 Mo. App. 680; Nenn v. Blackstone B. L. Assn., 149 Mo. 74; Mellen v. Moline Malleable Iron Works, 131 U.S. 352, 33 L.Ed. 178; Grand Trunk Co. v. Central Ry. Co., 85 F. 87; Olmstead v. Distilling Co., 73 F. 44; Powell v. Natl. Bank of Commerce, 74 P. 536; Murphy v. Fid. Mut. Ins. Co., 69 Neb. 489, 95 N.W. 1022. (b) Even if the bill in equity for the appointment of a receiver was insufficient, yet the intervening petition of appellant and the subsequent consolidation of the receivership suit with the injunction suit conferred jurisdiction and validated the appointment. Dabney v. Gordon Petroleum Co., 258 S.W. 837; Cooper v. Otero, 29 P.2d 341; Autenrith v. Wilder, 155 Ill. App. 545; Newell Contracting Co. v. Elkins, 257 S.W. 54; Hansel v. Purnell, 1 F.2d 266; Original Consolidated Min. Co. v. Abbott, 167 F. 681; 21 C.J., 171. (5) The appellant, Louis A. Harbin, has waived all objections to the validity of the appointment and is now estopped from contending the appointment and proceedings were void. (a) Appellant's objection that the court had no jurisdiction to appoint a receiver has been waived by appellant's failure to make it until this appeal. Early v. Smallwood, 302 Mo. 92, 256 S.W. 1053; Hollins v. Brierfield Coal Co., 150 U.S. 371, 14 Sup. Ct. 127, 37 L.Ed. 1113. (b) Appellant's intervention and participation in the receivership proceedings constituted a waiver. Rumsey v. Peoples Ry. Co., 144 Mo. 175, 154 Mo. 215; Greeley v. Provident Savs. Bank, 103 Mo. 212; State ex rel. Conners v. Shelton, 238 Mo. 281; Grand Rapids Electrotype Co. v. Powers-Tyson Corp., 224 N.W. 609, 239 N.W. 323, certiorari denied, 286 U.S. 545, 76 L.Ed. 1282; Manhattan Trust Co. v. Seattle Coal Iron Co., 16 Wn. 499, 48 P. 333; Burgess v. Lashby, 24 P.2d 147; Cooper v. Otero, 29 P.2d 341; Kreitzer v. Cement Co., 92 Kan. 835; Vieth v. Ress, 82 N.W. 116, 60 Neb. 52; Commercial Natl. Bank v. Burch, 141 Ill. 519; Russell v. Chicago Trust Savs. Bank, 40 Ill. App. 385; Ellis v. Vernon Ice, L. W. Co., 23 Tex. 856. (c) The appellant, having failed to properly present the question of the validity of the appointment of the receiver on his prior appeal, he is by the decision of the court in that appeal foreclosed from questioning the validity of that appointment, and that matter is no longer open to further inquiry. Grand Rapids Electrotype Co. v. Powers-Tyson Corp., 224 N.W. 609, 239 N.W. 323, certiorari denied, 286 U.S. 545, 76 L.Ed. 1282; Pitkin v. Shacklett, 117 Mo. 547; Stump v. Hornback, 109 Mo. 277; Schroeder v. Edwards, 205 S.W. 47. (6) The court did not err in ordering a sale of all of the property without segregating the property upon which appellant had a mortgage. Fleming v. Fleming Hotel Co., 17 N.J. Eq. 509, 61 A. 739; Natl. Bank of Kentucky v. Kentucky Coal Corp., 20 S.W.2d 724; Parker v. Bluffton Car Wheel Co., 18 So. 938, 108 Ala. 140; First Natl. Bank v. Colonial Trust Co., 167 P. 985, 66 Okla. 106; Harvey v. Kinston Knitting Co., 140 S.E. 746, 194 N.C. 734; Jones v. Page, 26 N.M. 440, 194 P. 883.
This case, which comes to me on reassignment, is the second appeal. The opinion in the first appeal is reported in 332 Mo. 971, 61 S.W.2d 907, where the facts of the case may be found.
The United Cemeteries Company owned a tract of land in Jackson County, Missouri, which had been platted as a cemetery and known as the Blue Ridge Lawn Cemetery. The appellant held a note in the sum of $16,800; secured by a deed of trust, on this tract of land. By reason of default in the payment of this note, the appellant began foreclosure proceedings, and on September 6, 1927, the United Cemeteries Company filed a suit in the Circuit Court of Jackson County for an injunction to enjoin the foreclosure of the cemetery under the deed of trust. On the next day the court issued a temporary restraining order enjoining the sale of this property. The appellant and the defendant Strother, trustee in the deed of trust, filed an answer and cross-petition in which they set up the deed of trust and asked the court to enter a decree selling the property by the sheriff or a special commissioner under the deed of trust and sought an order denying the permanent injunction.
On September 10, 1927, the Schooley Stationery Printing Company filed a suit in the Circuit Court of Jackson County, Missouri, against the United Cemeteries Company, seeking the appointment of a receiver for the defendant company. The defendant filed an answer and on that date Honorable Daniel E. Bird was appointed receiver. He qualified as receiver and took charge of the assets of the defendant company and operated its properties until November 7, 1933. On November 16, 1927, the appellant intervened in the receivership suit and filed an answer and cross-petition. He later filed an amended answer and cross-petition in which he set up his deed of trust on the cemetery property and sought a sale of this property by the sheriff or by the receiver, and sought distribution of the proceeds of the sale in the following manner; first: payment of costs; second: payment of the principal and interest due the appellant; and third: payment of such claims as might be allowed against the United Cemeteries Company.
At the January Term, 1929, of that court, the above mentioned two cases were consolidated and thereafter the proceedings were had in the consolidated cause as if the case had been begun as one cause.
On August 3, 1929, the court entered an order decreeing the sale of the property of the United Cemeteries Company and allowed claims which had been incurred prior to the receivership in the sum of $33,438.44; and further found that the claim of the appellant in the sum of $16,800 with interest should be allowed as a general claim. The order further provided that upon confirmation of the sale, the receiver should pay out of the proceeds of that sale, first, the court costs; second, the receiver's fees and all expenses incurred by him as receiver; and third, the general creditors of the company. The appellant took an appeal from this order, and the principle question on the first appeal was the right of the appellant to have his claim given priority over the general creditors. We held that the decree entered by the trial court should be so modified as to give the appellant, as owner of the note secured by the deed of trust, a preference over general creditors in the distribution of the proceeds of the sale.
When the mandate of this court was lodged in the trial court an order was entered by that court providing for the appointment of a special commissioner to make the sale of the properties and assets of the United Cemeteries Company. On October 14, 1933, the special commissioner sold all its properties to H.H. Halverson for the sum of $8600. That court entered an order confirming the sale and directed that the proceeds be distributed as follows: first, court costs; second, receivership expenses, including receiver's fee in the sum of $4500, his counsel fees in the sum of $3000, and all other expenses incurred in maintaining and operating the property; third, the payment of the appellant's note; and fourth, the payment of the general creditors. From this order the appellant has duly appealed to this court.
For the first time, on this appeal, the appellant contends that the appointment of the receiver is void because the court was without jurisdiction to make the appointment for the reason that the petition wholly fails to state a cause of action.
The question of jurisdiction of the subject matter may be raised at any stage of the proceedings, even by motion after judgment and for the first time in this court, and this question cannot be waived by entry of appearance or by express stipulation, and want of jurisdiction may be taken advantage of at any time before or after trial. A court obtains jurisdiction of the subject matter by operation of law, and cannot acquire it by appearance, answer, contesting the proceedings, consent, waiver, or by the doctrine of equitable estoppel. It is the uniform rule of this State that jurisdiction as to the subject matter of any suit cannot be waived in any manner, and a judgment in such case is absolutely null and void, and may be set aside and for naught held, even in a collateral proceedings. [Springfield Southwestern Railway Company v. Schweitzer, 246 Mo. 122, 151 S.W. 128; City of St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; State ex rel. Kelly v. Trimble, 297 Mo. 104, 247 S.W. 187.]
The respondent contends that the petition for receivership, the answer of The United Cemeteries Company and its consent to appointment of a receiver were sufficient to give the court jurisdiction, thereby making the appointment of the receiver valid. If we understand his argument correctly, it is that the trial court had jurisdiction of the parties and of the subject matter because the court, being possessed with general equity powers, had a right to appoint a receiver.
"Jurisdiction may be defined to be the right to adjudicate concerning the subject matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and, third, the point decided must be, in substance and effect, within the issue." [Stark v. Kirchgraber, 186 Mo. 633, l.c. 645, 85 S.W. 868; Gray v. Clements, 286 Mo. 100, l.c. 107, 227 S.W. 111, l.c. 113; Aetna Insurance Company v. R.E. O'Malley, H.P. Lauf, L.H. Cook and Gilbert Lamb, 342 Mo. 800, 118 S.W.2d 3.] Tested by these rules, the trial court has cognizance of receivership cases. The trial court had the parties present; the plaintiff, the Schooley Stationery Printing Company; the respondent, the United Cemeteries Company; and the appellant, Louis A. Harbin; but was the appointment of a receiver within the issues made by the pleadings? In other words, did the petition wholly fail to state a cause of action so the court did not have power to appoint a receiver, or was it error in making the appointment? If it were mere error, then the judgment of appointing a receiver is valid as no motion to revoke the appointment was filed, nor an appeal taken. [Guilbert v. Kessinger, 173 Mo. App. 680, 160 S.W. 17.] But if the petition for receivership wholly failed to state a cause of action then the judgment appointing the receiver is absolutely void and subject to collateral attack, which we think is so in this case.
Respondent contends that even "if the bill in equity for the appointment of a receiver was insufficient, yet the intervening petition of appellant and the subsequent consolidation of the receivership sent with the injunction suit conferred jurisdiction and validated the appointment." After intervening in the receivership suit the appellant filed an answer in which he set up his deed of trust and prayed that the sheriff or receiver be directed to sell the properties and that the proceeds be applied to the appellant's lien. His answer was practically the same in the injunction suit. There is nothing in his answers that would supply any defects in the receivership petition, if such is permissible. However, the question has been ruled adversely to respondent's contention in the case of Laumeier v. Sun-Ray Products Company, 330 Mo. 542, l.c. 549, 50 S.W.2d 640, wherein we said:
"Respondents now say that because of such appearance and consent appellant has waived the right and is estopped to complain of the court's order appointing the temporary receiver. If, as appellant contends, the court was without jurisdiction to make the appointment there is no substance in this contention. As said in 53 Corpus Juris, 52, section 40; `Jurisdiction to appoint a receiver cannot be conferred by consent or stipulation; that the parties in interest have agreed to the appointment does not relieve the court from looking at the question of jurisdiction, and especially from inquiring whether the application for receivership is with the view of obtaining final relief or merely for the purpose of securing a receivership;' etc. The cases cited by respondents in support of their position above stated are not in point."
The cases referred to as not being in point in the above quotation are Rumsey v. People's Ry. Co., 144 Mo. 175, 46 S.W. 144; Id., 154 Mo. 215, 55 S.W. 615, and Greeley v. Provident Savings Bank, 103 Mo. 212, 15 S.W. 429. These are the same cases relied upon by respondent in the case at bar, and, for the same reasons they are likewise not in point here.
This brings us to the question of whether the petition filed by the Schooley Stationery Printing Co., states a cause of action. The petition is as follows:
"Comes now the plaintiff, and for its cause of action against defendant states that plaintiff and defendant are now and were at all times herein mentioned Missouri corporations; that the defendant, United Cemeteries Company, a corporation, is and was at all times mentioned herein engaged in the cemetery business, and in particular engaged in the owning and operating of the cemetery known as the Blue Ridge Lawn Cemetery, situated in Jackson County, Missouri, more particularly described as follows, to-wit: (Legal description omitted.)
"Plaintiff states that the defendant is indebted to it in the sum of two hundred forty-five and fifty-five one hundredths ($245.55) dollars on account of stationery supplies purchased from plaintiff by defendant; that said account has been due and payable since the first day of January, 1927; that no part of this has been paid, although numerous demands for the payment thereof have been made.
"Plaintiff states that defendant has no ready money on hand with which to pay said claim or its other current obligations, which include divers and sundry creditors whose claims total approximately twenty thousand three hundred ($20,300.00) dollars; that said defendant has no cash on hand with which to pay the whole or any part of said indebtedness; that said defendant has assets approximating the sum of seventy thousand ($70,000.00) dollars in value; that unless the assets of said defendant be protected by this court, a multiplicity of suits will be filed and instituted in the courts of this State against defendant, which will depreciate and injure the property and assets of defendant to the detriment and injury of the defendant as well as defendant's creditors.
"Plaintiff further states that it is necessary for the protection and preservation of the defendant and its business, that this court appoint a receiver until further order of this court, to take charge of the defendant corporation, its business and assets, and to keep the defendant's business in operation as a going concern until the court may be further advised as to the condition of the assets and liabilities of the defendant company.
"Wherefore, plaintiff prays the court to appoint a good and competent receiver to take charge of the United Cemeteries Company, a corporation, the defendant, its business and assets, in Kansas City, and in Jackson County, Missouri, and preserve the same and operate and conduct the business of the defendant under the order of this court, and that the court may make such other and further orders in the premises from time to time as the court may deem just and proper."
This petition was filed by an unsecured contract creditor. It does not ask for any relief except the appointment of a receiver. Briefly, the petition states that the defendant is indebted to the plaintiff in the sum of $245.55; that the defendant has no ready money with which to pay this claim; that there are other creditors whose claims total about $20,300.00; that defendant has assets of about seventy thousand dollars; that unless a receiver be appointed the assets will be wasted; and then prays for the appointment of a receiver to take charge of the assets of the defendant. In short, the petition is a suit for the appointment of a receiver only. It asks no other relief. It does not even ask for a judgment for the sum due plaintiff.
"Unless authorized by statute, there is no such thing as an action brought distinctively for the mere appointment of a receiver; to justify the appointment it is essential that some proper final relief in equity be asked for in the bill which will justify the court in proceeding with the case." [4 Pomeroy's Equity Jurisprudence (4 Ed.), p. 3613, sec. 1539.] The rule in this State is that a court of equity has inherent power to appoint a receiver to take charge of the property and affairs of a corporation only when such appointment is ancillary to and in aid of an action pending for some other purpose, and in which there is a prayer for other and final or ultimate relief which the court has power and jurisdiction to grant. Receivership is a remedy to be invoked only in aid of the primary relief sought. It cannot of itself constitute such primary relief, and hence the court must have jurisdiction independent of the receivership. Absent a cause of action in the main case there is no main case pending, and the court is without power or jurisdiction to appoint a receiver. [Laumeier v. Sun-Ray Products Company, 330 Mo. 542, 50 S.W.2d 640; State ex rel. Kopke v. Mulloy, 329 Mo. 1, 43 S.W.2d 806; Price v. Bankers' Trust Company, 178 S.W. 745; State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483; Cantwell v. Columbia Lead Company, 199 Mo. 1, 97 S.W. 167; Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1095.]
Another reason that the court was without jurisdiction to appoint a receiver is that the plaintiff was an unsecured contract creditor. In an ordinary action at law to recover a money judgment, no money, property or business comes into the custody or control of the court for the payment of the debt or any other purpose before judgment. [Miller Brothers v. Perkins, 154 Mo. 629, 55 S.W. 874; Pusey Jones Company v. Hanssen, 261 U.S. 491; Lion Bonding Surety Company v. Karatz, 262 U.S. 77.] Nor did the fact that the appellant, who was a secured creditor, intervened on November 16, 1927, cure this defect. The receiver was appointed September 10, 1927, over two months before the appellant intervened. The Supreme Court of the United States in the Pusey Jones Company case, supra, 67 L.Ed. 763, l.c. 773, said:
"Respondent contends that, even if there was originally lack of equity jurisdiction, the defect was cured on October 18, 1931, when the intervention of the United States Shipping Board Emergency Fleet Corporation was filed and allowed. That corporation claimed to be a creditor, and to have a mortgage lien on all the real estate of the Pusey Jones Company. The contention is that the original defect in jurisdiction was thus cured, because the existence of a direct lien gives equity jurisdiction for the appointment of receiver, unhampered by the obstacles that confront unsecured simple contract creditors. The contention is clearly unsound; among other reasons, because the intervention did not occur until two months after entry of the decree here under review."
We hold that the court was without jurisdiction to appoint the receiver and the appointment was absolutely void, as were all subsequent orders in the receivership case. [Miller Brothers v. Perkins, supra; Laumeier v. Sun-Ray Products Company, supra.] It follows that the sale of defendant's property is void and passes no title, and the allowance of fees to the receiver and his counsel is also void. [Bushman v. Barlow, 328 Mo. 90, 40 S.W.2d 637; St. Louis, K. S. Railroad Co. v. Wear, 135 Mo. 230, 36 S.W. 357.]
The appellant's answer in both the receivership and the injunction cases, which, as previously stated, were consolidated, set up his deed of trust and asked that the same be foreclosed, and the property covered by it sold either by the sheriff or a commissioner. When this case was here on the first appeal we held that the power of sale in the deed of trust of the cemetery was void, but the deed of trust could be foreclosed by a court of equity where all rights growing out of the buried can be protected. It follows that the appellant was entitled to have his deed of trust foreclosed by the trial court sitting as a court of equity and the property sold as a cemetery.
It follows that the judgment of the trial court should be reversed with directions to enter a judgment of foreclosure of appellant's lien consistent with this opinion. It is so ordered. All concur, except Douglas, J., not sitting, because not a member of the court at the time cause was submitted.