Opinion
June 29, 1929.
1. BRIEF OF RESPONDENTS: Untimely Service: Waiver. Rule 15 does not provide that if the brief of respondents is served on relators only five days before the case is called for hearing, the brief, upon motion, shall be stricken from the files. Rule 16 provides that if Rule 15 is not complied with, the cause, at the option of respondents, may be continued or the appeal or writ of error dismissed; but where relators asked and obtained leave to file a reply brief within five days after the hearing, and did file such reply brief, they waived their right to complain of the failure of respondents to serve their answering brief within the time required by Rule 15.
2. JURISDICTION: Subject-Matter: Publication: Trust Estate: Conversion: Non-Residents: Statute. Allegations in the petition that testatrix devised and bequeathed her estate in trust to a son, one of the defendants, for a period of ten years; that her will directed that at the end of the ten-year period the entire estate should be distributed equally among her five children; that one of said children, a son, is now deceased, and one of the plaintiffs is his widow and administratrix and the other his only child; that said estate consisted of real estate, notes and bonds situated in this State; and that before said ten-year period expired, said trustee, his wife and daughter, all of whom are now non-residents, entered into a conspiracy to convert all of said estate, and in pursuance to the conspiracy organized a Missouri corporation through which they turned the real estate, notes, bonds and all other assets of the estate into cash and converted the cash to their own use, and naming as defendants the trustee, his wife and daughter, the tenants in charge of the real estate, the holders of notes secured by deeds of trust and the directors of the fictitious corporation, and asking that a receiver be appointed to take charge of the real estate and manage it pending the final hearing of the cause, bring the case clearly within the provisions of the statute (Sec. 1196, R.S. 1919) providing for an order of publication "in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court," and gave the circuit court of the county in which the real estate is situated jurisdiction of the subject-matter.
3. JURISDICTION: Subject-Matter: Trust Estate: Assets Outside Territorial Jurisdiction. The object and purpose of the suit being to secure to plaintiffs their interest in the estate of the restatrix as successors and heirs of a deceased devisee, including real estate situated in the county in which the suit is brought, the court may entertain their claim for the assets within its jurisdiction, whether or not the court may in the same suit reach other assets of the estate converted by the now non-resident trustee and compel him to account for them. If in fact a complete investigation of the entire trust estate must be had in order to ascertain the interest of plaintiffs in the property of which the court has jurisdiction, and if it be true that the petition asserts claim to property over which the court cannot exercise jurisdiction, those facts will not affect the right of the court to adjudicate plaintiffs' claim to the property within its jurisdiction.
4. ____: Service: Section 1204: Deputy Sheriff. A literal compliance with Section 1204, Revised Statutes 1919, in the matter of serving process upon a non-resident, is sufficient to give the court jurisdiction. Service by a deputy sheriff, if he is an officer authorized by law to serve processes in the state where the service is made, complies with the statute.
5. ____: ____: ____: Summons: Directed to Any Officer. A summons directed "to any officer authorized by law to serve process within the State of California" is in form directly within the terms of the statute (Sec. 1204, R.S. 1919) and is therefore sufficient, if executed by the proper officer. The summons, under said statute, is not insufficient because it does not designate the particular officer to whom it is directed.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 511, p. 1078, n. 37.
PRELIMINARY RULE DISCHARGED.
H.J. Mueller, John A. Moore and D.J. O'Keefe for relators.
(1) Under the rule that equity will not decree what it cannot compel performance of, equity will not take jurisdiction of a suit where the petition is one for an accounting and an accounting must he made before the action can be ascertained and the accounting is of a character which the court has no power to compel; where in such suit the court cannot render the ultimate relief or final judgment asked for without a precedent accounting which it is without jurisdiction to render, it has no jurisdiction of a suit by plaintiffs claiming and seeking to impose claimed interest (undeterminable without such accounting) on property in the territorial jurisdiction of such court. State ex rel. v. Denton, 229 Mo. 187; Davidson v. Wilson, 3 Del. Ch.an. 317; Slater, Myers Co. v. Arnett, 81 Va. 432; Condon v. Mutual, etc., 44 L.R.A. 149, 73 Am. St. 169. (2) Where the property in the territorial jurisdiction of the court is not shown to be trust estate, and as such the subject-matter of the suit, and the petition fails to show that the relation of cestui que trust and trustee exists between the plaintiffs and a particular defendant who has the legal title to and possession of such property, and the plaintiffs are not shown to have any title to, right to possession of or lien on said property, equity will not entertain jurisdiction to subject such defendant to an accounting and the property to possible claims of plaintiffs possibly arising out of alleged mismanagement by the trustee of a trust estate in which plaintiffs are cestui que trust, where such trustee, also named as a defendant, is a non-resident not personally served with process and not appearing and an accounting by such trustee is essential to determine what, if any, rights the plaintiffs have against such trustee, such rights being prerequisite to any rights against such defendant holding the property. Knevels v. Railroad, 66 F. 224; Tecumseh Iron Co. v. Camp, 9 So. (Ala.) 343; State ex rel. v. Denton, 229 Mo. 187. (3) It is irregular and erroneous to join claims only personal in their nature with others wherein constructive service is allowable, and then proceed to obtain such service as to several incongruous claims, and where a motion to set aside such service is seasonably made, it should be sustained. Zimmerman v. Barnes, 43 P. 764, 56 Kan. 419. (4) That part of Sec. 1204, R.S. 1919, purporting to authorize personal judgment upon service of process in another state is unconstitutional and void; such process has no validity as an instrument upon which a general judgment can be entered. Jones v. Anheuser, 188 S.W. (Mo.) 82; McMenamy v. Catering Co., 158 S.W. (Mo.) 427; Adams v. Heckscher, 80 F. 742; Moss v. Fitch, 212 Mo. 484. (5) Actions or suits in equity for an accounting are personal actions and an adjudication for an accounting cannot be had on constructive service; in an action for an accounting the first question to be determined is whether the plaintiff is entitled to an accounting and, if he is, an interlocutory judgment should give that relief, and all questions relating to the items of account should be litigated in the accounting proceedings. Second Natl. Bank v. Keane, 203 N.Y.S. 909; Buffington v. Greene, 285 S.W. 531; 1 C.J. 929. (6) Where it is sought to settle the rights of parties with respect to some contract, trust or fraudulent conduct, even though the proceedings may affect real estate as an incident, the proceedings are in personam and the proper venue is where the trustee defendant can be personally served with process. Brinkerhoff v. Huntley, 223 Ill. App. 591. (7) Where the suit is not one in partition, divorce, attachment, foreclosure of mortgage or deed of trust, nor for the enforcement of a lien, and when the "immediate object" of the action, as shown by the petition therein, is not the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, constructive service on a non-resident, by substituted service out of the State, is unauthorized and invalid and gives the court no in rem jurisdiction. Secs. 1204, 1196, R.S. 1919; Adams v. Heckscher, 80 F. 742; Adams v. Heckscher, 83 F. 281; Zimmerman v. Barnes, 43 Pac. (Kan.) 419. (8) A summons issued out of the circuit court by the clerk thereof directed "to any officer authorized by law to serve process within the State of California," does not comply with but is contrary to the statute and is invalid. Secs. 1204, 1185. R.S. 1919; Vaughn v. Brown, 9 Ark. 20; Hickey v. Forristal, 49 Ill. 255; Porter v. Hill County, 33 S.W. (Tex.) 383; Hansford v. Tate, 56 S.E. (W. Va.) 372; Simonson v. Typer, 285 F. 240.
Taylor R. Young, John C. Vogel and Abbott, Fauntleroy, Cullen Edwards for respondents.
(1) This being an action in equity which has for its immediate object the enforcement or establishment of a legal right, claim or demand to or against real property, within the jurisdiction of the court, the lower court had jurisdiction. Secs. 1196, 1204, R.S. 1919; Arnt v. Griggs, 134 U.S. 316; Adams v. Cowles, 95 Mo. 501; Bridge Co. v. Packing Co., 46 F. 584; Mitchner v. Holmes, 117 Mo. 185. (2) The writs served upon the defendants were in the proper form and the return thereto is in the proper form. Secs. 1204, 1190, R.S. 1919; Priest v. Capitain, 236 Mo. 446. (3) The non-resident defendants, by filing a motion to vacate the order appointing a receiver, and by invoking the affirmative action of the court in their prayer for dismissal of the cause, entered a general appearance. Scott v. Sanford, 19 How. 393; Nichols v. Baker, 13 Okla. 1, 73 P. 302; Kaw Life Assn. v. Lemke, 40 Kan. 142, 19 P. 337; Railroad Co. v. Consolidated Turnp. Co., 111 Va. 131, Ann. Cas. 1912A 239; Gans v. Beasley, 4 N.D. 140, 59 N.W. 714; State ex rel. v. Grimm, 239 Mo. 140; Western Loan Co. v. Butte Min. Co., 210 U.S. 368; Lively v. Picton, 218 F. 401; Heat Co. v. Clow, 204 U.S. 286; Handy v. Ins. Co., 37 Ohio St. 366; Spencer v. Court of Honor, 120 Minn. 422, 139 N.W. 815; Jones v. Andrews, 12 Wall. 329; St. Louis Ry. Co. v. McBride, 141 U.S. 127; Fitzgerald Cons. Co. v. Fitzgerald, 137 U.S. 98; Mahr v. Ry. Co., 140 F. 921; Ry. Co. v. Cox, 145 U.S. 603; Thames Mersey Ins. Co. v. United States, 237 U.S. 19; Sugg v. Thornton, 132 U.S. 524.
The relators filed their petition in this court praying for writ of prohibition to restrain the respondents, judges sitting in Division Two of the Circuit Court of the City of St. Louis, from proceeding with Case No. 118642, wherein relators are defendants, on the alleged ground that the said court has no jurisdiction of the persons defendant, nor of the subject-matter of the action.
The respondents file their return to the preliminary rule in prohibition and to that return the relators separately demurred. Therefore the case must be determined upon the allegations of the return which contains the petition in case No. 118642, entitled:
"In the Circuit Court of the City of St. Louis, State of Missouri. October, 1927, Term. No. 118642. Div. No. 2.
"Mary Bensberg, individually and as administratrix of the estate of Francis E. Bensberg, deceased, and Helen Bensberg, Plaintiffs, v.
"Ferdinand A. Bensberg, Brooke B. Bensberg, the 2nd, alias Brooke B. Bensberg, No. 2, alias Betsy B.B. Bensberg; Elizabeth B. Bensberg, Ferdinand A. Bensberg, trustee under the last will and testament of Catherina Bensberg, deceased; and Ferdinand A. Bensberg, James Pye and D.J. O'Keefe, composing the last known board of directors and trustees of the Gardale Realty Investment Company, a defunct Missouri corporation, and Catherine Haight and Title Guaranty Trust Company, as trustee for George E. Harris in a certain deed of trust recorded in the office of the Recorder of Deeds within and for the City of St. Louis, State of Missouri, in book 3077, at page 63, and Henry L. Cornet, as trustee for William R. Cody in a certain deed of trust recorded in the office of the Recorder of Deeds within and for the City of St. Louis, Missouri, in Book 2141, at page 459, and William R. Cody and George E. Harris, Defendants."
From that petition it appears that Catherina Bensberg died a resident of St. Louis, September 18, 1905, testate, leaving as her heirs at law William J. Bensberg, a son, Francis E. Bensberg, a son, Kate Bensberg Barracchia, a daughter, Ferdinand A. Bensberg, a son, Robert Bensberg and Dola Bensberg Kemp.
William J. Bensberg was deceased; Francis E. Bensberg was deceased, and plaintiff Mary Bensberg was administratrix of his estate, and plaintiff Helen Bensberg his sole heir at law.
By her will Catherina Bensberg devised to defendant Ferdinand A. Bensberg all her property, real, personal and mixed, in trust for a period of ten years only, and at the expiration of ten years one-fifth of the estate and all income and increase thereof should go to Francis E. Bensberg. Thus the plaintiffs in the case are claiming one-fifth interest in that estate, as administratrix of the estate and heir of Francis E. Bensberg. That is the only interest involved.
The petition further alleges that Ferdinand A. Bensberg, his wife Elizabeth B. Bensberg, and his daughter Brooke B. Bensberg, the relators, are now residents of the County of Los Angeles, State of California. The petition describes certain real estate in the city of St. Louis, and alleges that Catherine Haight, defendant, is tenant in possession of said real estate, and the title to the same is in Brooke B. Bensberg; that the defendant Gardale Realty Company is a defunct Missouri corporation; that the Title Guaranty Trust Company is trustee in a deed of trust, covering the real estate in St. Louis, described, securing certain notes.
I. The relators filed in this court a motion to strike from the files the statement, brief, points and authorities, of the respondents, on the ground that it was not served on the relators in compliance with Rule 15; that it was served only Brief of five days before the case was called for hearing. Respondents. This motion was taken with the case.
There is no such remedy provided for the violation of Rule 15. Under Rule 16, at the option of the respondent in such case, the cause may be continued or the appeal or writ of error dismissed. The relators asked and obtained leave to file a reply brief within five days after the hearing; they did file such reply brief satisfactory to them. We take it that the relators in asking leave to file reply brief after the hearing, waived their right to complain of the failure of respondent to serve their answering brief within the time required by Rule 15. They are not hurt by it. The motion is therefore overruled.
II. Relators complain that the circuit court did not have jurisdiction of the subject-matter of the action. Section 1196, Revised Statutes 1919, provides for order of Jurisdiction publication, "in all actions at law or in of Subject-Matter. equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court."
We are to determine whether the allegations of the petition bring the case within the terms of that statute. It alleges that Ferdinand A. Bensberg, as executor under the will of Catherina Bensberg, took possession of all the property of her estate and entered upon the performance of his duties; that the property consisted of real estate, stocks and bonds, situated in the City of St. Louis, State of Missouri; that as executor he was discharged March 8, 1906, and then took possession of said property as trustee under the provisions of the will; that he has never resigned nor renounced his trusteeship, and ever since has had and now has possession and control of the said estate as trustee.
The petition further alleges that in August, 1915, before the termination of the trust of ten years, created by the will, Ferdinand A. Bensberg, Elizabeth Bensberg, and Brooke B. Bensberg (relators here), entered into a conspiracy for the purpose of depriving Francis E. Bensberg of all his right as an heir and beneficiary under the will of the said Catherina Bensberg; that in furtherance of the conspiracy they organized the Gardale Realty Company, under the laws of the State of Missouri, and caused all of the stocks, merchandise, cash, bonds, notes and choses in action, and all other assets of the Bourbon Mercantile Company, a corporation then owned by said estate, together with the two parcels of real estate situated in the city of St. Louis, State of Missouri, of the reasonable market value of five hundred thousand dollars, to be conveyed to said Gardale Realty Investment Company, except certain assets belonging to said estate appropriated by said Brooke B. Bensberg and Elizabeth Bensberg; that in furtherance of the conspiracy the defendants, relators here, caused said Gardale Realty Investment Company to convert into cash all the real estate belonging to the said estate of Catherina Bensberg except certain property in St. Louis; that said cash and securities were received by the defendants, relators here, who now have the same. The petition then describes certain real estate in Los Angeles County, California, in which some of the assets were invested.
That on January 21, 1922, the defendants, each of them, caused to be conveyed to the defendant Brooke B. Bensberg, certain real estate in the city of St. Louis, described and known as 3520 Washington Avenue, which real estate belonged to the estate of Catherina Bensberg, deceased, and that the defendants held the same in trust for these plaintiffs and other beneficiaries of the estate of Catherina Bensberg, deceased.
The petition makes other allegations as to the conversion by defendants of the other assets of the estate of Catherina Bensberg through the instrumentality of the Gardale Realty Company; alleges that the defendant Catherine Haight is in possession of real estate at 3520 Washington Avenue and is paying rent thereon to Brooke B. Bensberg or Ferdinand A. Bensberg, and the income derived therefrom is being converted to their own use by the defendants Bensberg.
It is further alleged that in October, 1908, Ferdinand Bensberg conveyed the real estate last mentioned to Henry L. Cornet, as trustee, to secure certain notes to William R. Cody, both of whom are made defendants in the suit. The petition then prays that the defendant Catherine Haight be enjoined from paying the rents on the property No. 3520 Washington Avenue to the defendants or either of them, and that the title of that property be divested out of Brooke B. Bensberg, and that the notes to secure all mortgages on real estate be canceled and for naught held and that a receiver be appointed to take charge of all the real estate belonging to the trust estate to manage the same pending the final hearing of this cause. The allegations of the petition bring the case clearly within the provisions of Section 1196, and gives the court jurisdiction of the cause.
The relators complain that the real purpose of the action is to secure an accounting from Ferdinand A. Bensberg and that the divestiture of the title to the real estate in St. Louis is but incidental, that an accounting on the entire trust estate must first be had before the title to the real estate in St. Louis may be effected by a decree.
There may be allegations in the petition regarding the trust property in the hands of the defendant Ferdinand A. Bensberg as trustee, of which the circuit court could not assume jurisdiction. Whether, besides the real estate mentioned, other assets, personal property, etc., are within the jurisdiction of the court it is unnecessary to inquire. The object and purpose of the suit is to secure to the plaintiffs their interest in the estate of Catherina Bensberg, including the real estate described, in St. Louis. Whether the plaintiffs may in this suit reach all of the assets or not, the trial court may entertain the claim of the plaintiffs for the assets within the jurisdiction of the court. Even if an accounting must be had of the entire estate before the remedy can be applied, still the object and purpose of the suit, its ultimate end and aim, is to secure to the plaintiffs their interest in the real estate, and other property, if there is any, within the jurisdiction of the court. If in fact a complete investigation of the entire trust estate must be had in order to ascertain the plaintiffs' interest in the property of which the court has jurisdiction, and if the relators' position is correct that the petition in the circuit court asserts claim to property over which the court cannot exercise jurisdiction, it would not affect the right of the court to adjudicate plaintiffs' claim to the property within its jurisdiction. The Circuit Court of the City of St. Louis had jurisdiction of the subject-matter of the action.
III. The relator contends that respondent judges did not acquire jurisdiction of No. 118642, because service was not had upon the defendants, relators here, in accordance Constructive with the requirements of Section 1204, Revised Service: Statutes 1919. That section provides that Section 1204. substituted personal service may be had in cases mentioned in Section 1196, by causing a copy of the petition and summons to be delivered to each defendant residing or being without the State and within the United States or their territories, etc., and "such service may be made by any officer authorized by law to serve processes within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which the affiant is an officer. Such clerk or judge shall certify to the official character of the affiant, and to his authority to serve process within the state or territory where such service was made."
The statute then provides that the certificate shall be attested by the seal of the court, etc.
In this case a copy of the summons and the petition were served upon each of the defendants Brooke B. Bensberg, Ferdinand A. Bensberg and Elizabeth B. Bensberg by H.W. Thompson, Deputy Sheriff of Los Angeles County. His return and affidavit shows that be made such service under and by virtue of the authority and direction of William I. Traegler, sheriff of said county, and to this is appended the affidavit of the Clerk of the Superior Court, a court of record within the County of Los Angeles, State of California, that William I. Traegler was then the duly elected and qualified and acting sheriff of the county, and that H.W. Thompson was the regularly appointed and acting deputy sheriff of said county and duly authorized, and had full power and authority under and by virtue of the laws of California to serve processes within said state. The statute is literally complied with so far as the service and the proof of service is concerned.
The relator cites Priest v. Capitain, 236 Mo. 446, where a proof of service was held insufficient because the officer's official character was certified by the deputy clerk instead of the clerk, while the statute requires that it shall be made by the clerk or the judge of the court. A strict compliance with the statute is required. There is no such objection to the execution of the service by the deputy sheriff because he is an officer authorized to execute such service in the State of California, as well as the sheriff, and our statute provides that service may be had by any officer authorized to serve processes within the State.
Relators make the further objection that the summons is directed "to any officer authorized by law to serve process within the State of California," and claims it is insufficient because it does not designate the particular officer to whom the summons is directed. This form is directly within the terms of the statute, and is therefore sufficient. It is not required that the party filing a suit which may require immediate service shall go to the trouble of inquiring particularly what particular officer is available for the execution of the service. It is sufficient that the service is executed by the proper officer. The service of process under provision of Section 1204 means of course the service of summons in the form provided in Section 1186.
Section 1185 provides that the summons "shall be directed to the officer to be charged with the execution thereof . . . in all cases where it is not otherwise provided by law."
In this case it is otherwise provided by law in Section 1204, and therefore the officer to whom it is directed need not be named. The service upon the defendants in the injunction suit is therefore good.
The preliminary rule is discharged. All concur.