Ackerman v. Green

• Citation: 81 S.W. 509,107 Mo.App. 341
• Parties: ACKERMAN, Administrator de bonis non of the Estate of FLEMING, Deceased, Respondent, v. GREEN, Appellant
• Decision Date: 24 May 1904
• Court: Court of Appeal of Missouri (US)

81 S.W. 509

107 Mo.App. 341

ACKERMAN, Administrator de bonis non of the Estate of FLEMING, Deceased, Respondent, v. GREEN, Appellant

Court of Appeals of Missouri, St. Louis

May 24, 1904

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

Order compelling judgment debtor to undergo examination.

REVERSED AND REMANDED.

STATEMENT.

This is a supplemental proceeding to compel the appellant to undergo an examination regarding his ability to satisfy a judgment against him in favor of the respondent, and is founded on sections 3229 to 3232, inclusive, of the Revised Statutes of 1899. The judgment against the appellant was recovered April 6, 1903, in the circuit court of the city of St. Louis, for the sum of $ 263,903.61. An execution was issued on it returnable to the June term, 1903, of said court and was returned at that term nulla bona. This petition for the examination of the appellant under oath was filed November 10, 1903:

"In Circuit Court, City of St. Louis, Missouri.

"Thomas F. Ackerman, Adm. d. b. n. of Alfred Fleming, deceased plaintiff, v. Charles Green, defendant.

"Now comes Thomas F. Ackerman, administrator de bonis non of Alfred Fleming, deceased, and states to this court that, on the sixth day of April, 1903, in the above-entitled cause of Thomas F. Ackerman, administrator de bonis non of Alfred W Fleming, deceased, against Charles Green, he recovered a judgment against said Green for the sum of $ 263,903.61 and costs of said cause, and that on the fifteenth day of May 1903, an execution was issued by the clerk of this court on said judgment against the property of said Green for said sum of $ 263,903.61 and costs, returnable to the June term, 1903, of this court and placed in the hands of the sheriff of the city of St. Louis, Mo., for execution. And thereafter, viz., on June 1, 1903, said sheriff returned said execution wholly unsatisfied.

"And your petitioner, Thomas F. Ackerman, further says that he believes that said Green has property subject to execution and that he has conveyed his property to defraud, hinder or delay his creditors. Your petitioner further says that said Green a few years ago, was the owner of a large amount of property and had the reputation and standing of a very wealthy man. For a year or two last past, so far as petitioner knows or can ascertain, said Green has been engaged in no business but lives in a large, elegant and costly residence, to maintain which requires a large amount of money and he seems to be well supplied with money, and in his dress, appearance and manner of living he appears and acts like a gentleman of large means. And your petitioner believes that said Green has property subject to execution and that he has conveyed his property to defraud, hinder or delay his creditors.

"Wherefore your petitioner prays this court for an order requiring said Green to appear before this court or before a referee to be appointed by this court at a time and place to be fixed by this court to undergo an examination under oath touching his ability and means to satisfy said judgment.

"DANIEL DILLON, and

"ROBERT L. SHACKELFORD,

"Attorneys for Petitioner.

"City of St. Louis, State of Missouri, ss.

"Thomas F. Ackerman, being duly sworn, on his oath says that he has read the foregoing petition and that the statements therein contained are true according to the best information and belief of him, said Ackerman.

"THOMAS A. ACKERMAN.

"Subscribed to and sworn to before me this twenty-eighth day of October, 1903.

"ROBERT SHACKELFORD,

"My term of office (sic)

"December 12, 1904.

"Notary Public, St. Louis county, Mo."

An ex parte order was made the same day and renewed November 17, directing the appellant to appear before a referee to undergo an examination as to his ability to satisfy the judgment. On November 25, appellant filed a motion to vacate and annul said order, enumerating several grounds, of which the only important one was that the affidavit to the respondent's petition was based on the affiant's information and belief instead of his knowledge of the truth of the statements contained in the petition. That motion was heard November 28 and overruled and the appellant appealed to this court.

Judgment reversed and cause remanded.

Klein & Hough and Kinealy & Kinealy for appellant.

(1) An affidavit to knowledge and belief and an affidavit to information and belief are clearly distinquishable. An affidavit made upon information and belief, where the statute requires knowledge and belief, as in this case, is insufficient. Clark v. Bank, 77 N.W. 805; Bray v. McClury, 55 Mo. 128; In re Parrish, 28 A.D. 20; Schermerhorn v. Owen, 62 N.Y.S. 763; McGuire v. Schroeder, 63 N.Y.S. 968; Githens v. Mount, 44 A. R. 851; Pierce v. Parish, 50 N.Y.S. 735; Lossee v. Allen, 40 N.Y.S. 349; Manken v. Pope, 65 How. Pr. 453; Lindsay v. Sherman, 1 Code N. S. 25; Eldridge v. S. B. Wm. Campbell, 27 Mo. 595; State v. Hayward, 83 Mo. 303; State v. Bennett, 102 Mo. 356. (2) The affidavit is unsupported by other evidence and fails to show reasonable ground for belief that the debtor has property subject to execution. It states mere conclusions and belief without showing ground of belief. Bank v. Clark, 52 A.D. 601; Bank v. Wilson, 13 Hun ___; McKinley v. Snider, 116 Ind. 160.

Daniel Dillon and Robert L. Shackleford for respondent.

(1) The petition filed in the circuit court by plaintiff praying for an order requiring defendant to appear and undergo an examination under oath, etc., and the order made by that court, were under sections 3227 and 3228 of Revised Statutes of 1899. In the first place, the statute requires no particular form of affidavit, but only that it be satisfactory to the court, and such as to make it appear to the court that there is reasonable ground to believe, etc. Elridge v. Steamboat, 27 Mo. 595; State v. Ransberger, 106 Mo. 135; Neb. Nat. Bk., 77 N.W. 805; Schermerhorn v. Owens, 62 N. Y. Supp.; Maguire v. Schroeder, 63 N.Y.S. ___; Githens v. Mount, 44 A. 851; Miller v. Adams, 52 N.Y. 409. (2) Plaintiff contended in the circuit court that an appeal did not lie from the order made in the circuit court in this case. Carter v. Lindell, 28 Mo.App. 316; Schwoerer v. Christophel, 64 Mo.App. 81; Powell v. Camp, 60 Mo. 571.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J. (after stating the facts).

The first proposition to be considered is whether an appeal lies from the order for an examination of the appellant. No special provision is found in the statutes for appealing in this sort of a proceeding and the right of appeal must be derived, therefore, from the general statutory provisions regulating appeals. Those provisions are found in section 806 of the Revised Statutes and are as follows:

"Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause."

The order of the circuit court for the examination of the appellant appears to fall within the words and meaning of the clause of the statute allowing an appeal to a party "from any special order after final judgment in the cause." The decisions are not consistent as to whether a supplemental proceeding in aid of an execution is to be treated as a continuation of the original proceeding or as a new case; but most of them range on the side of the former proposition. 3 Freeman, Executions (3 Ed.), sec. 395 and citations. That was the doctrine of the New York courts until changed by a statute providing that the proceedings should be treated as an independent one. If it is an independent suit, the order for examination is a final judgment; because, under our statutes, nothing can be done except to examine the judgment debtor and deliver an opinion as to whether or not he has property which ought to be devoted toward satisfying the judgment against him. R. S 1899, sec. 3230. In other States, including New York, the court or judge has power to appoint a receiver for the property or order it to be surrendered to be applied on the judgment. It is plain that in the form the proceeding must take in this State, the order for the judgment debtor's examination is the final order in the matter; just as an order on a motion to quash an execution was a final judgment from which an appeal would lie prior to the enlargement of the right of appeal by the Act of 1895, so as to allow the right, in stated instances, from orders and judgments not possessing the character of final judgments. The proceedings on such a motion were always regarded as independent and the judgment as a final one in such sense that an appeal would lie from it. Wauchope v. McCormick, 158 Mo. 660, 59 S.W. 970; Ex parte James, 59 Mo. 280; McGinnis v. McCarty, 15 Mo.App. 595. Whatever defense against being subjected to an examination in regard to his ability to pay a judgment a debtor may have, is concluded by an order that he submit to examination, which has the effect of a final, instead of an interlocutory, judgment and contemplates no further consideration of the debtor's protest or rights in the premises. Whether, therefore, we regard this proceeding as part of the original suit or as a distinct action, the conclusion follows that an appeal lies from the order unless the...