Abramsky v. Abramsky

• Decision Date: 14 July 1914
• Docket Number: No. 17862.,17862.
• Citation: 261 Mo. 117,168 S.W. 1178
• Parties: ABRAMSKY v. ABRAMSKY.
• Court: Missouri Supreme Court

168 S.W. 1178

261 Mo. 117

ABRAMSKY v. ABRAMSKY.

No. 17862.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. APPEAL AND ERROR (§ 955) — REVIEW — APPOINTMENT OF RECEIVER.

Rev. St. 1909, § 2081, empowering a court of general jurisdiction to appoint a receiver pending action, "whenever such appointment shall be deemed necessary," vests a discretion reviewable only for palpable abuse.

2. HUSBAND AND WIFE (§ 205) — ACTIONS.

A husband may sue his wife in equity, especially since Rev. St. 1909, § 8304, enables her to sue and be sued like a feme sole.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Suit by Daniel Abramsky against Pauline Abramsky. From an order relative to a receiver, defendant appeals. Affirmed.

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 14 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 additions 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 $4,125, 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 $3,500 on the principal of this indebtedness, and paid the joint semiannual interest notes five years, the same consisting of 10 semiannual interest notes, aggregating $3,915. 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 semiannual interest notes. The plaintiff paid $1,500 on the three principal notes, and paid all of the six joint interest notes, the latter amounting to $2,227.60. This left an unpaid indebtedness of $12,500, which was borrowed by the plaintiff and defendant from one Clara E. Hatfield, 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 semiannual 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 cost 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 $50 each per month, and one producing $70 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 these 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. The plaintiff also requested the defendant to vacate the apartment occupied by them, but this she has refused to do. The defendant has never paid to the plaintiff, or accounted to him for, any of the rents collected by her, as aforesaid, but on the contrary has refused so to do. At the time of the filing of the amended petition, with which we are here alone concerned, there was overdue and unpaid one of the interest notes given by the plaintiff and defendant to said Clara E. Hatfield, and secured by the last-mentioned deed of trust, and the trustee under the power therein was proceeding to sell the property hereinbefore mentioned under the provisions of the deed of trust.

"The defendant," the petition further avers, "has secreted all of her property, other than her interest in the aforesaid parcel of land, so that the same cannot be reached by process of law."

The defendant in November, 1912, instituted an action for divorce against the plaintiff, and that action was, at the time of the filing of the amended petition, still pending and undetermined. For relief plaintiff in his petition prayed the court for an accounting of the amounts paid by plaint...