Birtwhistle v. Woodward

• Decision Date: 19 March 1888
• Citation: 7 S.W. 465,95 Mo. 113
• Parties: Birtwhistle v. Woodward, Garnishee, Appellant
• Court: Missouri Supreme Court

7 S.W. 465

95 Mo. 113

Birtwhistle v. Woodward, Garnishee, Appellant

Supreme Court of Missouri

March 19, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Reversed and remanded.

Boyle Adams & McKeighan for appellant.

(1) A garnishment proceeding cannot be used as a bill in equity for the purpose of setting aside a garnishment proceeding and of winding up a partnership estate and stating an account between them. Epstein v. Block, 10 Mo.App. 352; Birtwhistle v. Woodward, 17 Mo.App. 277. A garnishment proceeding is strictly legal, and no power exists in the court to invoke equitable interference to compel a settlement and adjustment of accounts between parties and partnership. Sheedy v. Bank, 62 Mo. 17; McPherson v. Railroad, 66 Mo. 103; Lackland v Garesche, 56 Mo. 267. (2) A plaintiff cannot treat a sale of personal property as valid, in order to subject him to the garnishment of the purchase money, and at the same time attack the sale for fraud. Goddin v. Pierson, 42 Ala. 370. (3) The court, at the conclusion of the respondent's case, should have instructed the jury, as requested by the appellant, that upon the evidence submitted the respondent could not recover against the appellant.

E. P. Johnson with C. P. & J. D. Johnson for respondent.

(1) As soon as the delictum on the part of Birtwhistle occurred his wife became a quasi creditor, and, as such, entitled to set aside a conveyance subsequently made by him for the purpose of defrauding her of her alimony, etc., thereafter recovered by her. Barrett v. Barrett, 5 Ore. 411; Bouslough v. Bouslough, 68 Pa. St. 499; Livermore v. Boutelle, 11 Gray, 217; Bailey v. Bailey, 61 Me. 361; Frakes v. Brown, 2 Black. 295; 2 Bish. on Mar. and Div. [6 Ed.] secs. 450, 453. (2) 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. 591; Armstrong v. Tuttle, 34 Mo. 432; Brokerage Co. v. Cronin, 14 Mo.App. 587. (3) Garnishment is a proper remedy also where plaintiff had a claim against or lien upon property that had been sold (as respondent had in this case, by reason of her divorce and injunction proceedings), to reach the proceeds of it in the hands of the garnishee. McGuire v. Wilkinson, 72 Mo. 199; Case-bolt v. Donaldson, 67 Mo. 308. (4) Either partner, after dissolution and settlement of the partnership, may sue the other at law for any balance. Sharp v. Johnston, 59 Mo. 557; Silver v. Railroad, 5 Mo.App. 381; affirmed, 72 Mo. 194; Whetstone v. Shaw, 70 Mo. 575. And whenever a balance is struck between them, 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.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

Plaintiff, on the eighth 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 twenty-five thousand dollars, and derived therefrom an annual income of five thousand dollars; 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 & Company, 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 eighth day of October, 1883, and on the morning of the tenth, 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 thirtieth of January, 1884, the court granted her a decree of divorce, and allowed her alimony in the gross sum of five thousand dollars. An execution was issued on this judgment, under which defendant Woodward, on the first of 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's petition for divorce was sold and delivered to him by Birtwhistle, on the tenth of October, 1883, for which he paid him six thousand...