Birtwhistle v. Woodward
| Decision Date | 19 March 1888 |
| Citation | 7 S.W. 465,95 Mo. 113 |
| Parties | BIRTWHISTLE v. WOODWARD. |
| Court | Missouri Supreme Court |
Under an execution issued on a judgment for alimony, proceedings in garnishment were instituted against the defendant. It appeared in evidence that the judgment debtor and defendant had been partners, and that the latter had purchased the interest of the former; both having knowledge, at the time of the transfer, of the divorce proceedings. Held, that the court below erred in authorizing the jury to find a verdict for plaintiff without requiring them to find that the partnership had been dissolved and finally settled when the said transfer was made; upon which fact the right of plaintiff to recover in this form of proceeding must depend.
Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.
Boyce, Adams & McKeighan, for appellant.
A partnership interest cannot be reached by garnishment. Fenton v. Block, 10 Mo. App. 536; Sheedy v. Bank, 62 Mo. 17. Counsel also cited Epstein v. Salorgne, 6 Mo. App. 352; Birtwhistle v. Woodward, 17 Mo. App. 277; McPherson v. Railroad Co., 66 Mo. 103; Lackland v. Garesche, 56 Mo. 267.
E. P. Johnson and C. P. & J. D. Johnson, for respondent.
Where property has been fraudulently conveyed, garnishment by a creditor is a proper remedy to reach it. Lackland v. Garesche, 56 Mo. 267; Potter v. Stevens, 40 Mo. 592; Armstrong v. Tuttle, 34 Mo. 432; Brokerage Co. v. Cronin, 14 Mo. App. 587. The sale may have been for value, and still fraudulent. McVeagh v. Baxter, 82 Mo. 518; Burgert v. Borchert, 59 Mo. 81; Allen v. Berry, 50 Mo. 90; Johnson v. Sullivan, 23 Mo. 474. When a balance is struck between partners, or a settlement made, the one owing or holding the balance may be garnished by a creditor of the other. Knerr v. Hoffman, 65 Pa. St. 126; Willard v. Decatur, 59 N. H. 137; Treadwell v. Brown, 41 N. H. 12, 15.
Plaintiff on the 8th of October, 1883, commenced a suit for divorce in the circuit court of the city of St. Louis against her husband, James F. Birtwhistle, and for alimony, alleging, among other things, that he was the owner of personal property of the value of $25,000, and derived therefrom an annual income of $5,000; that he owned no real estate; that said personal property consisted of an undivided half interest in the machinery, stock, and choses in action of the book and job printing establishment and bindery of the firm of C. B. Woodward & Co., of which firm said Birtwhistle was a member. It is also alleged that, by reason of the facts stated in the petition as a cause of action, he had repeatedly told plaintiff that, if she separated from him, she could not get a cent of said property; that he had kept what he had in personal property, to prevent her from obtaining anything from him in case of separation; that she charged the fact to be that, unless he was restrained from so doing, he would sell and convey said property, and defeat the collection of any sum which the court might adjudge him to pay her as alimony; and prayed for a temporary order enjoining him from selling or conveying said property until he should give security for all sums of money that might be awarded her, and that, on a final hearing, the injunction be made perpetual, or until such security should be given. Birtwhistle was served with process on the 8th day of October, 1883, and on the morning of the 10th said court issued an order against him to show cause, at a time and place stated, why a restraining order as prayed for should not be issued. On the 30th of January, 1884, the court granted her a decree of divorce, and allowed her alimony in the gross sum of $5,000. An execution was issued on this judgment, under which defendant on the 1st March, 1884, was garnished, and he appeared, and filed answer to the usual interrogatories, denying that he had in his possession, custody, or charge any property of Birtwhistle, or that he was indebted to him; and alleged that the property mentioned in plaintiff...
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Zimmer v. Massie
...one. This instruction erroneously directs a finding for plaintiff without requiring proof of any breach of the bond sued upon. Birdwhistle v. Woodward, 95 Mo. 113. (2) The was not cured by the proof offered by plaintiff that the appeal was dismissed, as it was further shown by the evidence ......
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