Ackerman v. Green

• Decision Date: 22 February 1907
• Citation: 100 S.W. 30,201 Mo. 231
• Parties: ACKERMAN v. GREEN.
• Court: Missouri Supreme Court

100 S.W. 30

201 Mo. 231

ACKERMAN v. GREEN.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. EXECUTION — SUPPLEMENTARY PROCEEDINGS — NOTICE TO DEFENDANT.

In proceedings under Rev. St. 1899, §§ 3227-3232 [Ann. St. 1906, pp. 1832-1834], providing for compelling an execution defendant to appear and undergo an examination touching his ability to satisfy a judgment, no notice to the judgment debtor being provided for by the statute, none is required.

2. CONSTITUTIONAL LAW — DUE PROCESS OF LAW — EXECUTION — SUPPLEMENTARY PROCEEDINGS.

Rev. St. 1899, §§ 3227-3232 [Ann. St. 1906, pp. 1832-1834], relating to proceedings to compel an execution defendant to appear for examination as to his ability to satisfy a judgment, do not deprive such defendant of his liberty and property without due process of law, though no notice of the proceeding is required.

3. SAME — EQUAL PROTECTION OF LAW.

Rev. St. 1899, §§ 3227-3232 [Ann. St. 1906, pp. 1832-1834], relating to proceedings to compel an execution defendant to appear for examination as to his ability to satisfy a judgment, do not deprive such defendant of the equal protection of the law, though no notice of the proceeding is required.

4. EXECUTION — SUPPLEMENTAL PROCEEDINGS — APPLICATION — SUFFICIENCY.

Under Rev. St. 1899, §§ 3227-3232 [Ann. St. 1906, pp. 1832-1834], providing that on the return of an execution unsatisfied an order may be granted requiring defendant to appear and give evidence touching his ability to satisfy the judgment, an application showing that the petitioner believed defendant had property subject to execution, and that he had conveyed his property to defraud, hinder, or delay his creditors, and alleging that defendant seemed to be well supplied with money, and that his manner of living indicated that he was a man of large means, was sufficient to authorize an order for examination.

5. SAME — AFFIDAVIT.

Rev. St. 1899, § 3228 [Ann. St. 1906, p. 1832], relating to proceedings to examine an

execution defendant touching his property, provides that the order for examination shall issue only in case it shall be made to appear by affidavit or other evidence that there is reasonable ground to believe that such judgment debtor has property subject to execution, such affidavit to be made to the best of the knowledge and belief of the affiant. Held, that an affidavit that the statements in the petition were true "to the best of the knowledge and belief of said affiant" was sufficient.

6. APPEAL—DECISIONS REVIEWABLE—EXAMINATION OF EXECUTION DEFENDANT.

Rev. St. 1899, §§ 3227-3232 [Ann. St. 1906, pp. 1832-1834], relating to the examination of an execution defendant touching his property, making no provision for an appeal, no appeal lies from an order for such examination.

7. STATUTES — CONSTRUCTION — STATUTES RELATING TO SPECIAL PROCEEDINGS.

Where a statute in relation to special proceedings is complete in itself and covers the entire subject, it is exclusive, and proceedings under it are governed solely by its provisions.

Graves, J., dissenting.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Application by Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, against Charles Green. From an order appointing a referee and requiring defendant to appear for examination as to his ability to satisfy a judgment, defendant appeals. Appeal dismissed.

See 93 S. W. 255.

This is an application which was filed by the respondent in the circuit court of the city of St. Louis for an order thereof requiring appellant to undergo an examination, under oath, touching his ability and means to satisfy a judgment which had theretofore been rendered against him in said court in favor of the respondent. Prior to the filing of this application an execution had been issued on the judgment, and had been returned nulla bona. As the sufficiency of the application is questioned, as well as the affidavit thereto, it will be necessary for a correct understanding of the questions involved to set out both in full, which are as follows:

"Now comes Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, and states to this court that on the 6th day of April, 1903, in the above-entitled cause of Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, against Charles Green, he received a judgment against said Green for the sum of $253,903.61 and costs of said cause; and that, on the 15th day of May, 1903, an execution was issued by the clerk of this court on said judgment against the property of said Green for said sum of $253.903.61 and costs, returnable to the June term, 1903, of this court, and placed in the hands of the sheriff of the city of St. Louis, Mo., for execution. And thereafter, viz., on June 1, 1903, said sheriff returned said execution wholly unsatisfied. And your petitioner, Thomas F. Ackerman, further says that he believes that said Green has property subject to execution, and that he has conveyed his property to defraud, hinder, or delay his creditors. Your petitioner further says that said Green a few years ago was the owner of a large amount of property, and had the reputation and standing of a very wealthy man. For a year or two last past, so far as petitioner knows or can ascertain, said Green had been engaged in no business, but he lives in a large, elegant, and costly residence, to maintain which requires a large amount of money, and he seems to be well supplied with money, and in his dress, appearance, and manner of living he appears and acts like a gentleman of large means. And your petitioner believes that said Green has property subject to execution, and that he has conveyed his property to defraud, hinder, or delay his creditors. Wherefore your petitioner prays this court for an order requiring said Green to appear before this court or before a referee to be appointed by this court, at a time and place to be fixed by this court, to undergo an examination under oath, touching his ability and means to satisfy said judgment.

"City of St. Louis, State of Missouri—ss.: Thomas F. Ackerman, duly sworn, on his oath says that he has read the foregoing petition, and that the statements therein contained are true, according to the best information and belief of him, said Ackerman. Thomas F. Ackerman.

"Subscribed and sworn to before me this 28th day of October, 1903. My term of office expires December 12, 1904. Robert Shackelford, Notary Public, St. Louis County, Mo."

Additional affidavit is as follows:

"City of St. Louis, State of Missouri—ss.: Thomas F. Ackerman, being duly sworn, on his oath says that he has read the foregoing petition of Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, filed in the circuit court of the city of St. Louis on the 9th day of November, 1903, and that the statements in said petition are true to the best of the knowledge and belief of said affiant, Thomas F. Ackerman. Thomas F. Ackerman.

"Subscribed and sworn to before me this 13th day of June, 1904. Wm. H. Hauschulte, Clerk."

On June 14, 1904, said petition and affidavits were presented to the court, and the court thereupon made an order on defendant Charles Green that he should appear before Joseph H. Zumbalen, referee, on June 23, 1904, at 11 a. m., in the Rialto building, to undergo an examination, under oath, touching his ability to satisfy said judgment. On June 17, 1904, said order was returned served on defendant Charles Green. On June 21, 1904, defendant filed his motion to vacate said order of June 17, 1904, with acknowledgment of plaintiff's attorney of service thereof on him, which motion is as follows: "Charles Green, defendant in the above-entitled cause, moves the court to vacate and set aside its order made June 14, 1904, in the above-entitled cause, commanding defendant to appear for examination before Joseph Zumbalen, Esq., a referee, appointed by it, under the provisions of the sections of the Revised Statutes of Missouri hereinafter set forth, and also for the specific purposes mentioned in said order, and which order was served on this defendant June 16, 1904, and for grounds of, and reasons for, this motion and why said order should be vacated and set aside he assigns the following, viz.: (1) That no return has been made upon any execution issued upon the judgment in said order mentioned on which said order could be lawfully based. (1½) That this cause was appealed to the Supreme Court of Missouri on May 23, 1903, without a supersedeas bond, and the same is now pending in said Supreme Court, wherefore this court has no jurisdiction to make said order without previous notice to defendant. (2) That no competent or relevant evidence was submitted to the court sufficient to justify the issuance of said order or sustaining the allegations of said petition. (3) That the petition filed in this court and on which said order was made does not state facts sufficient to constitute lawful grounds for making said order or giving jurisdiction to this court to make it. (4) That said order was issued without any notice to him, said Charles Green, of it or the petitioner's intention...