Hawk v. Hawk

• Decision Date: 07 June 1900
• Citation: 102 F. 679
• Parties: HAWK v. HAWK et al.
• Court: U.S. District Court — Western District of Arkansas

102 F. 679

HAWK v. HAWK et al.

United States District Court, W.D. Arkansas, Texarkana Division.

June 7, 1900

A petition in this case was filed by Jennie M. Hawk, the wife of the defendant Hale E. Hawk, and John M. Cook as trustee in bankruptcy, on the 22d of May, 1900. It is a petition for a temporary restraining order against John M. Cook, trustee in bankruptcy of Hale E. Hawk, directing said trustee to withhold from distribution one-third of all the personalty or its proceeds, and one-third of the real estate or its proceeds, belonging to the estate of the said bankrupt; and her petition rests upon the following admitted facts: The plaintiff was married to the defendant Hale E. Hawk on October 8, 1895. At her marriage he was entirely without means, and she had several thousands of dollars in property which after her marriage she turned over to him, and which he used as his property. Part of it was invested in real estate in his name, and the remainder of it invested in a sawmill and other properties connected therewith, and stood in his own name at the time he contracted the debts now probated against his estate in bankruptcy. The plaintiff lived with her husband, who is a white man, until the year 1900, when he became enamored of a colored woman and drove his wife from the house, took up with the colored woman, furnishing her a home, and lived with her. Ascertaining in the latter part of April that she was about to file a petition for divorce, to prevent her from getting any portion of the estate under the statutes of Arkansas hereafter quoted he filed his petition in bankruptcy on the 27th of April, 1900, and was immediately adjudicated a bankrupt. On the following day the plaintiff filed her petition for divorce in one of the circuit courts of the state, and on the 5th of May following she filed in the same court her petition for alimony and attorney's fees; and alimony had been granted her, to the extent of $18 per month, and $50 attorney's fees, and $20 for expense of taking depositions. That the defendant has filed his schedule of exempt property before the referee to the extent of $500, and the same is now pending for hearing. That a sale of the property of the said bankrupt has been made, the money collected, and May 31, 1900, designated by the said referee as the date of payment of the first dividend out of said bankrupt's estate. That the creditors who have probated their claims are numerous, and they aggregate several thousand dollars more than the assets of the bankrupt's estate. She alleges that she will obtain her divorce in October, 1900, but that, if the trustee is not in the meantime restrained from distributing the estate, he would pay out under the orders of the referee all of the proceeds thereof. She then pleads the statute of Arkansas regulating the distribution of property where the wife obtains a divorce, and prays for a restraining order against the trustee, and such other relief as she may be entitled to. Section 2517 of Sandels & Hill's Digest of the Statutes of Arkansas is as follows: 'In every final judgment for divorce from the bonds of matrimony granted to the husband an order shall be made that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife, the court shall make an order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband shall be entitled to one third of the husband's personal property absolutely and one third part of all the lands whereof the husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled; and when it appears from the evidence in the case, to the satisfaction of the court, that such real estate is not susceptible of the division herein provided for without great prejudice to the parties interested, the court shall order a sale of said real estate to be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon the terms and conditions, and at the time and place fixed by the court; and the proceeds of every such sale after deducting the costs and expenses of the same, including the fee allowed said commissioner by said court for his services, shall be paid into said court and by the court divided among the parties in proportion to their respective rights in the premises. The proceedings for enforcing these...