15 S.W. 379 (Mo. 1891), Garesche v. MacDonald

Citation:15 S.W. 379, 103 Mo. 1
Opinion Judge:Brace, J.
Party Name:Garesche, Appellant, v. MacDonald et al
Attorney:J. M. Holmes for appellant. Alex. J. P. Garesche also for appellant. M. Kinealy and Jas. R. Kinealy for respondent.
Judge Panel:Brace, J. Barclay, J., not sitting.
Case Date:February 02, 1891
Court:Supreme Court of Missouri
 
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Page 379

15 S.W. 379 (Mo. 1891)

103 Mo. 1

Garesche, Appellant,

v.

MacDonald et al

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

J. M. Holmes for appellant.

(1) Upon the facts proved the appellant was entitled to a decree. It was sufficient to show that the defendant Furlong sold the property in question with the intention of defrauding plaintiff thereby, and that such intention was known to defendant MacDonald at the time he purchased. The payment or non-payment of a consideration was immaterial. Dougherty v. Cooper, 77 Mo. 528; Shelley v. Boothe, 73 Mo. 74; Frederick v. Allgaier, 88 Mo. 598. (2) There was no such discrepancy between the case stated in the pleadings and the case made by the evidence, as would warrant a decree for defendant upon that ground. Reed v. Bott, 100 Mo. 62. (3) The amendment required, if any, being merely formal can be made in this court. Crispen v. Hannovan, 86 Mo. 168.

Alex. J. P. Garesche also for appellant.

(1) MacDonald bought with full knowledge of the suit and order of alimony. (2) First. An order for alimony is a valid judgment, and may be enforced by execution. Second. Though it should not be taxed as costs, yet the error as to form is too immaterial to justify a reversal. Third. Plaintiff cannot by dismissal impair its effect. These propositions are sustained by Waters v. Waters, 49 Mo. 386, which has never been overruled. Freeman on Ex. [2 Ed.] p. 183, sec. 82. (3) Without other proof than that MacDonald knew of the order of alimony and which is admitted, his title must yield to that of plaintiff, regardless of whether or not it was his intention to defraud plaintiff and although he may have paid the full value of the property. O'Reilly v. Nicholson, 45 Mo. 160; Turner v. Babb, 60 Mo. 350; Savings Inst. v. Collonius, 63 Mo. 294; McIlwrath v. Hollander, 73 Mo. 105. This doctrine of lis pendens in respect to these cases involving alimony takes a very wide range. In these the deed was made before suit brought, but annulled. Livermore v. Boutelle, 11 Gray (Mass.) 219; Nix v. Nix, 10 Heiskell (Tenn.) 547; Bailey v. Bailey, 61 Me. 361; 2 Bish. on Mar. and Divorce [6 Ed.] 453; Wait's Fraud Con., sec. 110n, p. 177.

M. Kinealy and Jas. R. Kinealy for respondent.

(1) The case made in the petition was abandoned on the trial and hence the petition was properly dismissed. Reed v. Bott, 100 Mo. 62; Dixon v. Hill, 5 Mich. 409; Jordan v. Buschmeyer, 97 Mo. (2) The order of December 9, 1885, for attorney's fees was void; the court had no power to make it. Waters v. Waters, 49 Mo. 385. (3) The order of December 9, 1885, was interlocutory, and could not be enforced by execution issued on an order made after the dismissal of the suit. Wright v. Wright, 6 Texas, 31; Tiffin v. Tiffin, 2 Binn. 202. (4) The order of January 27, 1886, being, in effect, a judgment, can be read on the hearing of the cause in this court, to sustain the judgment of the court below. Day v. New Lots, 9 Cent. R. 442; Stilwell v. Carpenter, 62 N.Y. 639; Rockwell v. Merriam, 45 N.Y. 168; Bank v. Enerie, 2 Sand. (S. C.) 718; Jarvis v. Sewell, 40 Barb. 449; Catlin v. Grissler, 57 N.Y. 373; Burt v. Place, 4 Wend. 524; Richie v. Putnam, 13 Wend. 524; Dresser v. Brooks, 2 Barb. 429; Williams v. Wood, 14 Wend. 126; People v. N. Y., 7 How. Pr. 81. (5) The order of December 9, 1885, was superseded, canceled and abandoned by virtue of the order of the court of January 27, 1886, and thereafter no execution could have been issued on it. (6) The order of January 27, 1886, could not relate back to the date of the order of December 9, 1885, so as to affect the title acquired by MacDonald under Furlong's deed to him. McClannahan v. Smith, 76 Mo. 428. (7) The order of January 27, 1886, so far as it allowed alimony, was void. Waters v. Waters, 26 Mo.; Brown v. Worthington, 6 Am. Law Reg. (N. S.) 621. (8) An allowance of alimony does not constitute the wife a creditor within our statute concerning fraudulent conveyances. Dunnock v. Dunnock, 3 Md. Ch. 140-144; Chas v. Ingalls, 97 Mass. 530; Wait on Fraud. Convey., sec. 110, n. 1; Bailey v. Bailey, 61...

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