Bender v. Young

• Citation: 252 S.W. 691
• Decision Date: 09 April 1923
• Docket Number: No. 23089.,23089.
• Parties: BENDER v. YOUNG et al.
• Court: United States State Supreme Court of Missouri

252 S.W. 691

BENDER v. YOUNG et al.

No. 23089.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Motion for Rehearing Denied June 11, 1923.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Proceeding by Estelle Bender against Taylor R. Young and others, to have defendants adjudged in contempt of court. From adjudication that the named defendant and another were in contempt, those defendants appeal. Reversed, and defendants discharged.

Foristel & Eagleton, of St. Louis, for appellant Joseph Bender.

Taylor R. Young, of St. Louis, pro se.

Gus Stern, of St. Louis, P. W. Haberman, of New York City, and Glendy B. Arnold, of St. Louis, for respondent.

WHITE, W.

The appellants were adjudged in contempt of the circuit court of the city of St. Louis in that they "contemptuously and contumaceously and unlawfully interfered and obstructed the execution" of an interlocutory decree and order of sale in partition.

In order to make clear the reason for the court's action, three cases between the Benders are brought under consideration. Joseph Bender and Estelle Bender were husband and wife, and had three children, Eugene Bender, Walter Bender, and Joseph Bender, Jr. Mrs. Bender brought suit for divorce against her husband, and decree was rendered in her favor in 1914. At the time of the decree three pieces of real estate in the city of St. Louis stood in the names of Estelle Bender and Joseph Bender, Sr. April 19, 1917, the three children, two of whom were minors at the time, filed a suit in the circuit court of the city of St. Louis against Estelle Bender, alleging that Joseph Bender, Sr., had paid for the three tracts of land, and had taken the title in the names of himself and Estelle Bender, his wife, under an agreement between them that, in the event there should be a future separation between them, the title to said property should be conveyed to the children, and they should be owners free from any interest whatever of Joseph Bender, Sr., and Estelle Bender.

It was alleged that Joseph Bender was ready to convey, and that Estelle Bender had refused to do so. The theory of the case was that, by reason of the agreement, a trust resulted in favor of the children. On a trial of the case judgment was rendered for the defendant, Estelle Bender. The plaintiffs appealed, and the judgment was affirmed by this court in March, 1920. Bender v. Bender, 281 Mo. 473, 220 S. W. 929. The case is designated as No. 9643, Division 13. On May 2, 1919, after that suit was brought, Estelle Bender, the plaintiff, filed in the circuit court of the city of St. Louis a partition suit in which Joseph Bender, Sr., and the children were defendants. She alleged that Joseph Bender, Sr., and plaintiff, Estelle Bender, were tenants in common of the three tracts of land involved in the first suit, and praying for the partition of the real estate. That was designated as suit No. 9854, series B. To that suit Joseph Bender filed an answer setting up the same facts alleged in the first suit in relation to the purchase of the property with his own funds and the agreement between himself and wife to convey the property to the children in the event of a separation. In that case, on July 5th the court entered an interlocutory decree in partition, finding that on the 17th day of April, 1917, Joseph Bender, Sr., had conveyed his interest in the property to Eugene Bender Walter Bender, and Joseph Bender, Jr.; that the plaintiff, Estelle Bender, owned an undivided one-half interest in the estate, and that the three children owned the remaining half interest. The court found the property could not be divided in kind without prejudice, and ordered a sale of it. That suit was appealed to this court, and for failure to comply with the rules the appeal was dismissed October 15, 1920. On the return of the mandate of this court to the circuit court, December 6, 1920, that court made a renewed order of sale, and appointed a special commissioner to sell such real estate at the December term of said court. In obedience to the order the commissioner proceeded to advertise the property for sale, the sale to occur on the 3d day of February, 1921.

On the 17th day of January, 1921, Joseph Bender, Sr., through his attorneys, Taylor R. Young and T. T. Hinde, filed a suit, which the trial court adjudged was in contempt. That was suit No. 41472, series B. The pleadings in case No. 41472 are not set out in the abstract of the record, and we are obliged to glean from the pleadings in this proceeding the purpose and effect of that suit.

January 25, 1921, Estelle Bender filed her petition in the circuit court of St. Louis asking that Joseph Bender, Sr., Taylor R. Young, and T. T. Hinde, Bender's attorneys, be cited to appear and show cause why they should not be punished for contempt. The petition sets up that suit No. 41472 was instituted for the willful and malicious purpose of hindering and defeating the interlocutory decree and renewed order of sale in the partition proceedings. A citation was issued and the defendants each made return. T. T. Hinde admitted that he and Young, as attorneys for Bender, on January 17, 1921, filed suit No. 41472, and denied that he was attorney of record or otherwise connected with the partition suit. His return then mentioned the first suit, No. 9643, in which the children of Estelle Bender and Joseph Bender, Sr., sought to establish a resulting trust in the property as against their mother, and recites the history of that case and its final determination in "the Supreme Court. It then alleged that a careful examination of the opinion in that case convinced the attorneys of Joseph Bender that the plaintiffs in that case, in attempting to establish a resulting trust in the children by the contract between Estelle Bender and Joseph Bender, had misconceived their remedy; that the real remedy for Joseph Bender was that which he attempted in the last suit, No. 41472, in which he sought to establish a resulting trust in his own favor as against his wife, presumably on account of having paid the purchase money for the land. Hinde then alleged that the proceeding for contempt is upon the theory that the partition suit was res adjudicate as to all the rights of the father, mother, and children in the matter of the land, which matter was a mixed question of law and fact, giving rise to an honest difference of opinion, and denied that he instituted. suit No. 41472 for any malicious purpose, or for the purpose of resisting or defeating the decree and orders of the court, but that said suit was filed in good faith under the circumstances related; that the respondent in no manner disobeyed an order of the court, and had in no manner challenged or criticised an order of the court; that he was actuated alone by a desire to have the law as he understood it properly administered; and prayed to be discharged.

Joseph Bender, Sr., respondent, filed his answer and return " to the order to show' cause, stating that he had no legal knowledge or information as to what he should do in the premises, and he relied solely upon the opinion and judgment of his counsel, Taylor R, Young and T. T. Elude, so that the children and Estelle Bender might receive what wail due them under the law.

Taylor R. Young filed separate return, in which he adopted the allegations of fact set forth in the answer and return of T. T. Hinde, alleging that he had not personally made an examination of the pleadings or of the testimony offered in any of the cases referred to, nor of the judgments therein rendered, and had accepted the judgment of T. T. Hinde, upon whom was cast the burden of looking up the law and taking such steps as the facts would justify.

On the trial of the case the pleadings and judgment and orders of sale in the partition suit and the pleadings in suit No. 9043 were introduced in evidence. The petitioner also offered evidence of real estate men to show that the pendency of a suit which involved the title to real estate would prevent bidders from bidding at the sale of such real estate. Several witnesses were examined, and the effect of their testimony was that a suit of the kind described as No. 41472, while It was pending, would prevent an advantageous sale of the real estate involved under the order in partition. All of this evidence was general, applying to the effect of a suit of that character. On this evidence the court discharged T. T. Hinde from the rule to show cause, and found that Joseph Bender, Sr., and Taylor R. Young were guilty of contempt in filing suit No. 41472, and ordered that they pay the cost of the proceeding, and be committed to jail until they signify their willingness to dismiss said cause No. 41472. From" that judgment Young and Bender appealed" to this court.

I. The courts have classified contempts as direct and constructive; that is to say, contempt committed in the presence of the court, which may be punished summarily, and contempt committed not in the presence of the court, in which a notice or hearing is required before punishment can be inflicted. Again they are classified into civil and criminal contempts. A criminal contempt is conduct which tends to impair the authority of the court. A civil contempt is disobedience to or obstruction of some order of the court; it is not an offense against the dignity or authority of the court, but against the party in whose favor such order is made. In re Clark, 208 Mo. loc. cit. 144, 145, 106 S. W. 990, 15 L. It. A. (N. S.) 389; State ex rel. v. Bland, 189 Mo. loc. cit. 213, 214, 88 S. W. 28; 13 C. J. pp. 5 and 6.

The contempt charged in this case is a constructive civil contempt. In defining the limits of the court's authority to punish for such contempts,' several cases in this state have attempted a genera: rule. In re Clark, supra, 208 Mo. loc. cit. 145, 106 S. W. 996, 15 L. R. A. (N. S.) 389, contains this explanatory statement:

"A civil contempt is where a person...