ON MOTION FOR REHEARING. The respondents herein have filed a motion for rehearing. From a careful study of said motion, we conclude that respondents have formed the erroneous idea that our opinion herein undertakes to go into the merits of the controversy. Such idea we conclude is not justified, but to make clear, if need be, we state that the only issues considered by this court are:
First. Does the circuit court, the pleadings all presumed to be true, have jurisdiction.
Second. If so, does the petition state a cause of action. *Page 863
The petition before us for review has the following paragraph touching the orders of the bankruptcy court to-wit:
"Ordered that subject to the conditions hereinafter set out, the said claims of A.J. Brunswig, C.H. Bacher and Claude Madison, heretofore filed herein, be allowed as common claims for the respective amounts therein claimed; but that said allowance be without prejudice to the said Central Fibre Products Company in its petition to be subrogated to their respective rights to any dividends due them thereunder except as to such pro rata dividend upon said sum of $1800.00 as shall be due said A.J. Brunswig, as trustee under the said will of John W. Cave, and counsel for Central Fibre Products Company having announced at this hearing that it intends to file a plenary suit to determine the rights of the respective parties, it is further ordered that except as to the dividend on said $1800.00 such dividends as may be due upon the said claims of A.J. Brunswig, C.H. Bacher and Claude Madison be turned over to the Clerk of the Court in which said suit is brought by said Central Fibre Products Company, there to await determination of said suit;' said order is the only and final action of said referee in the premises. Promptly thereafter the plaintiff commenced this action."
By assuming all of above facts as true, this court, based upon law cited in the opinion, concluded that the bankruptcy court, acting under its powers of discretion, had relinquished its jurisdiction as to such an amount as was ascertained was due to C.H. Bacher after the pro rata dividend due A.J. Brunswig as trustee under the will of John W. Cave was ascertained and set apart.
We further concluded that such sum as was found due to C.H. Bacher was ordered by the bankruptcy court to be deposited in a plenary suit as is shown by the pleading in question.
The petition before us has the following paragraph:
"Plaintiff further states that the claims of the said Claude Madison and the said A.J. Brunswig against said bankrupt, Missouri Paper Products Company, have been ascertained and allowed in said bankruptcy proceedings, and the dividends payable thereon out of the assets of said bankrupt estate ascertained, and that the amount thereof, together with the dividend payable on account of the claim of defendant, C.H. Bacher, namely the sum of $545.30, are together wholly insufficient to pay the balance of said claim of the plaintiff; that by reason of the premises the plaintiff is entitled to receive and have paid to it said dividend so ascertained on account of said claim of the defendant, C.H. Bacher, against said Bankrupt, in said sum of $545.30."
If the above language be true and we so treat same, then the A.J. Brunswig claim, referred to in the paragraph above set forth, has been fully adjudicated in the bankruptcy court and an ascertained *Page 864 amount of $545.30 allowed to C.H. Bacher. Said amount of $545.30 is, therefore, the sum ordered by the bankruptcy court to be turned into the clerk of the court of general jurisdiction, there to be adjudicated in a plenary suit therein brought.
We conclude that the language of the petition can be reasonably understood to mean that the $545.30, is exclusive of the pro rata dividend as to the $1800.
What we said in our opinion concerning the action of the trustee in objecting to the jurisdiction of the circuit court rather than depositing the $545.30 according to the orders of the bankruptcy court, is only explanatory of our conclusion that the fact that he had not so deposited had no bearing upon the question of the jurisdiction of the circuit court. In other words such issue must be determined by the allegation in the pleadings and not in consideration of the attitude of one in possession of the res that the bankruptcy court had ordered deposited.
After we stated our conclusions as to jurisdiction, we proceeded to a consideration of the pleadings and concluded that same stated a cause of action.
Upon review we hold to our conclusions that the petition in issue pleads facts that state a cause of action and facts that gave to the circuit court jurisdiction of the cause of action stated.
As to whether or not the bankruptcy court actually made such orders as are plead and as to whether or not the $545.30 stated as being the amount found due to C.H. Bacher after adjustment as to A.J. Brunswig and others, is not before us for our determination and as stated in the opinion these matters are for determination in the trial court.
Motion for rehearing overruled. All concur.