Abramsky v. Abramsky
| Decision Date | 14 July 1914 |
| Citation | 168 S.W. 1178,261 Mo. 117 |
| Parties | DANIEL ABRAMSKY v. PAULINE ABRAMSKY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.
Affirmed.
George B. Webtser and William J. Grodski for appellant.
(1) The second amended petition is wholly without equity. (a) It showed that the plaintiff had no right to the exclusive possession of the premises, or the exclusive use of the rents. 1 Tiffany, Real Prop., p. 381; 2 Jones, Real Prop sec. 1791; 1 Washburn, Real Prop. (6 Ed.), sec. 915; 1 Pingree, Real Prop., p. 720; Hilles v. Fisher, 144 N.Y. 306; Branch v. Polk, 61 Ark. 393; Buttlar v. Rosenblath, 42 N.J.Eq. 651; Shinn v. Shinn, 42 Kan. 1; Corinth v. Emery, 63 Vt. 505; Chandler v. Cheney, 37 Ind. 391; McCurdy v Cummings, 64 Pa. St. 41. (b) It showed that the plaintiff had adequate remedy by action at law. O'Day v. Meadows, 194 Mo. 588; Grimes v. Reynolds, 184 Mo. 679; Rice-Stix & Co. v. Sally, 176 Mo. 107; Bank v. Hageluken, 165 Mo. 443; Montgomery v. Montgomery, 142 Mo.App. 481; Hurt v. Cook, 151 Mo. 416; Winn v. Riley, 151 Mo. 61; High, Receivers (4 Ed.), sec. 741. (c) It failed to state a case for accounting in equity. Sommerville v. Helman, 210 Mo. 567; Vogelsang v. Wood Fibre P. Co., 147 Mo.App. 578; Attilla M. Co. v. Winchester, 102 Ala. 184; Badger v. McNamara, 123 Mass. 117; McCulla v. Beadleston, 17 R. I. 20; Lathan v. Harby, 50 S.C. 428; Padwick v. Hurst, 23 L. J. Ch. 657; Phillips v. Phillips, 9 Hare, 471; 3 Daniel, Chan. Pl. & Pr. 1929, n. 1. (d) It stated no case for discovery in equity, that ground of jurisdiction having been disposed of by our statutes on depositions. Tyson v. Farm & Home Assn., 156 Mo. 594; Vogelsang v. Wood Fibre P. Co., 147 Mo.App. 578. (e) It stated no case in equity on the theory of a fiduciary relation between the parties, since in a case where the only substantial injury is financial loss, there is no ground for the interference of equity and the consequent denial of trial by jury. Van Raalte v. Epstein, 202 Mo. 173; Baum v. Stephenson, 133 Mo.App. 187; Lee v. Conran, 213 Mo. 404; R. S. Mo., 1909, sec. 1968; State v. Aloe, 152 Mo. 479; High, Receivers (4 Ed.), sec. 603; 1 Pomeroy, Eq. Jr. (3 Ed.), sec. 178. (2) The second amended petition states no ground for the appointment of a receiver. Vaughn v. Vincent, 88 N.C. 116; Heinze v. Kleinschmidt, 25 Mont. 89; Cassety v. Capps, 3 Tenn. Ch. 524; Lemaster v. Ellott, 53 Neb. 424; Ketcham v. Provost, 132 N.Y.S. 120; High, Receivers (4 Ed.), secs. 554, 555; Alderson, Receivers, pp. 568, 569. On the concrete case the appointment of a receiver was erroneous. McClure v. McGee, 32 Ky. L. R. 1318; Niehaus v. Niehaus, 125 N.Y.S. 1071. The sole object of this proceeding is the appointment of a receiver, which is only granted as ancillary to some other relief in circumstances of an equitable nature. An appointment should not be made where it is the sole purpose of the litigation and no independent ground for equitable relief is shown. State ex rel. v. Ross, 122 Mo. 435; In re French Bank, 53 Cal. 495; Nabon v. Ongley El. Co., 156 N.Y. 196; Slover v. Coal Creek Co., 113 Tenn. 421; Baltimore B. House v. St. Clair, 58 W.Va. 565; Harwell v. Potts, 80 Ala. 70; Zuber v. Micmac G. M. Co., 180 F. 625.
David Goldsmith for respondent.
(1) The amended petition states a cause of action of equitable cognizance, because the action is one between husband and wife. 10 Ency. Pl. & P., p. 195, subject "Husband and Wife;" Porter v. Bank, 19 Vt. 410; Woodward v. Woodward, 148 Mo. 241; Manning v. Manning, 79 N.C. 293; Lane v. Lane, 76 Me. 527; Simmons v. Thomas, 43 Miss. 31. (2) The plaintiff is entitled to an accounting in equity from the defendant without regard to their marital relationship. Schulz v. Ziegler, 83 A. 968; Aubry v. Schneider, 69 N.J.Eq. 633; Maekotter v. Maekotter, 131 N.Y.S. 815; Bates v. Hamilton, 144 Mo. 14; Leach v. Beattie, 33 Vt. 195; Henson v. Moore, 105 Ill. 403; Clayton v. McKay, 143 Pa. St. 225; Trapnall v. Hill, 31 Ark. 345; Neil v. Morris, 73 Ga. 406; Fire Proofing Co. v. St. Louis, etc., Co., 177 Mo. 559; Beck v. Kallmeyer, 42 Mo.App. 571. (3) A proper case was presented for the appointment of a receiver, and consequently for the interposition of a court of equity, and this is true irrespective of the conflicting claims of the parties to the rents. Sanford v. Ballard, 33 Beav. 401; Goldberg v. Richards, 26 N.Y.S. 336; Ames v. Ames, 148 Ill. 340; Weise v. Welsh, 30 N.J.Eq. 434; 34 Cyc. 64; High on Receivers (4 Ed.), sec. 604, p. 756; Woodward v. Woodward, 148 Mo. 241; Manning v. Manning, 79 N.C. 293; Lane v. Lane, 76 Mo. 527; Revised Statutes 1909, sec. 2018; Stark v. Grimes, 88 Mo.App. 413; Bird v. Lamphear, 36 N.Y.S. 1069; Drury v. Roberts, 2 Md. Ch. 159; March v. Smith, etc., Co., 47 N.J.Eq. 193; Trust Co. v. Mintzer, 65 Minn. 132; Darusmont v. Patton, 72 Tenn. 597; Schwabacher v. Kane, 13 Mo.App. 131; Eddy v. Baldwin, 32 Mo. 369; Mitchell v. Bradstreet Co., 116 Mo. 240; Pelham v. Grocery Co., 156 Ala. 509; Federal Bankrupt Law, sec. 1, subd. 15; In re Schoesmith, 135 F. 684. (4) The respondent is entitled to the whole of the rents derived from the property in question during the joint lives of himself and his wife. Hall v. Stephens, 65 Mo. 670; Bank v. Fry, 168 Mo. 508; Frost v. Frost, 200 Mo. 474; Craig v. Bradley, 153 Mo.App. 591; Dickey v. Converse, 117 Mich. 453; Bynum v. Wicker, 141 N.C. 96; Revised Statutes 1909, sec. 2878.
This is an appeal from an order of the circuit court of the city of St. Louis refusing to revoke and vacate an order for the appointment of a receiver. The only questions in issue are therefore whether the facts set out in the petition of plaintiff were such as to legally justify the action of the court in appointing a receiver. The facts of the case and the law to be applied to them necessarily involve the goodness, in a way, of the second amended petition of plaintiff.
This petition was unnecessarily voluminous, covering, as it does, some fourteen pages of the printed record. We do not think it necessary to cumber the books with the body of it, and to this end have adopted as a fair analysis the statement of its contents as they are set forth in respondent's statement of the facts, with some emendations of our own. This petition shows in fair substance the following facts set out therein:
The plaintiff and defendant are husband and wife. In December, 1904, the plaintiff purchased a lot of land in the city of St. Louis, and caused the same to be conveyed to himself and the defendant, so that an estate by the entirety was created. Immediately after this purchase, namely, in 1905, the plaintiff and defendant caused to be erected on this lot an apartment building. The cost of the lot was $ 4125, and it was paid wholly by the plaintiff; but, in order to pay for the cost of the apartment building, which amounted to $ 17,500, the plaintiff and the defendant borrowed that amount from one Newberry, and executed their joint notes therefor and for the interest thereon, and executed a deed of trust on the property securing the payment of said notes. The plaintiff paid $ 3500 on the principal of this indebtedness, and paid the joint semi-annual interest notes five years, the same consisting of ten semi-annual interest notes, aggregating $ 3915.
In 1909, when the balance of the principal of this indebtedness, namely, $ 14,000, matured, the plaintiff and defendant borrowed that amount from one Spratte on a new deed of trust on the property, giving therefor their three joint principal notes and their six joint semi-annual interest notes. The plaintiff paid $ 1500 on the three principal notes and paid all of the six joint interest notes, the latter amounting to $ 2227.60.
This left an unpaid indebtedness of $ 12,500, which was borrowed by the plaintiff and defendant from one Clara E. Hatifield, in April, 1912. For this new loan the plaintiff and defendant gave their joint principal note for $ 12,500, payable three years after date, and their joint six semi-annual interest notes for $ 312.50 each. The defendant paid one of these interest notes.
In addition to the payments already mentioned the plaintiff paid all general and special taxes assessed against the property for the years 1905, 1906, 1907, 1908, 1909, 1910 and 1911, and also the costs of the fire and tornado insurance for those years, all of which payments were required to be made by the aforesaid deeds of trust.
The apartment building hereinbefore referred to contains four apartments, one of which was occupied by the plaintiff and defendant, and the other three of which were rented to tenants, two producing fifty dollars each per month and one producing seventy dollars per month. The defendant collected all the rents accruing from these apartments prior to May 1, 1912. Immediately prior to that date, the plaintiff notified the several tenants that he objected to any further payments of rent to the defendant. Notwithstanding this notification the defendant continued to collect the rents from the tenants to the time of the filing of the amended petition in May, 1913.
In December, 1912, one of the apartments was vacated and the plaintiff employed a real estate agent to rent it. The defendant, however, refused to permit the agent to rent the apartment and prevented him from doing so, and also "prevented the plaintiff from exercising any control or dominion whatsoever over said apartment, and arrogated to herself, assumed and exercised, to the entire exclusion of the plaintiff, all dominion and control over said apartment," and furthermore re-rented the apartment for $ 50 and has continued collecting the rent therefrom....
To continue reading
Request your trial