Bovard v. Bovard

• Citation: 128 S.W.2d 274
• Decision Date: 08 May 1939
• Docket Number: No. 19419.,19419.
• Parties: MABEL R. BOVARD, RESPONDENT, v. SPENCER D. BOVARD, APPELLANT.
• Court: Court of Appeal of Missouri (US)

128 S.W.2d 274

MABEL R. BOVARD, RESPONDENT, v. SPENCER D. BOVARD, APPELLANT.

No. 19419.

Kansas City Court of Appeals. Missouri.

May 8, 1939.

Appeal from Circuit Court of Jackson County. — Hon Marion D. Waltner, Judge.

REVERSED AND REMANDED (with directions).

Jay L. Oldham for appellant.

(1) The judgment of the court in overruling defendant's motion to quash execution is erroneous because by said judgment the court failed to give effect to the full satisfaction of said judgment by plaintiff, which under the law extinguishes the judgment and leaves no basis on which to issue execution. Chilton v. Cady, 298 Mo. 101, l.c. 113, 250 S.W. 403; Hoover et al. v. The Mo. Pac. Ry. Co., 115 Mo. 77, l.c. 81, 21 S.W. 1076; Peoples Savings Bank v. McDowell, 204 S.W. 406, l.c. 407; Sec. 1355, R.S. Mo. 1929; Weniger v. Weniger, 32 S.W. (2d) 773, l.c. 774; State ex rel. Ross, Collector, et al. v. Juden et al., 110 S.W. (2d) 865, l.c. 867. (2) The judgment of the court in overruling defendant's motion to quash the execution is erroneous because the execution was issued without the knowledge, authority or consent of plaintiff, which said consent and authority are necessary under the law because the judgment is the property of the person in whose favor it is rendered. Miller v. St. Louis Car Co., 14 S.W. (2d) 464, l.c. 465. (3) The judgment of the court is erroneous in that it set aside the record satisfaction of the judgment on oral motion of plaintiff's former attorney without any evidence of any matter or fact to justify the setting aside of such satisfaction and when in fact such relief had not been asked by plaintiff and that issue was not properly presented or tried by the court. Sec. 812, R.S. Mo. 1929; Paddock v. Somes, 102 Mo. 226, 235, 14 S.W. 746, 748. (4) The court erred in overruling defendant's motion to quash execution, because the judgment or decree of record shows on its face that plaintiff's motion for temporary alimony, support and maintenance, suit money and attorney's fee was allowed without any evidence, whatever, to support such allowance and without a hearing as to the defendant's financial worth or his ability to pay. 19 Corpus Juris, p. 216, par. 518; Howey v. Howey, 220 Mo. App. 484, 276 S.W. 84.

John J. Brauch for W.H.H. Piatt, respondent.

(1) The satisfaction of the judgment was contrary to law. R.S. Mo. 1929, sec. 1123. (2) The issuance of the execution and garnishment in aid thereof was under and by virtue of the authority and right vested in W.H.H. Piatt. The judgment for attorney's fees was in favor of and payable to W.H.H. Piatt, plaintiff's attorney, had not been paid, was not an item of court costs and could not be satisfied by mutual consent of plaintiff and defendant in disregard of the rights of the judgment creditor and lien-holder, W.H.H. Piatt. The court may award execution to the extent of the attorney's lien. R.S. Mo. 1929, sec. 11716; Curtis v. Railway, 118 Mo. App. 341, 94 S.W. 762; Wait v. Railroad, 204 Mo. 491, 103 S.W. 60; Young v. Hinshaw, 102 Mo. App. 173, 76 S.W. 701; Barthels et al. v. Garrels, 227 S.W. 910, l.c. 914, 915; State ex rel. v. Roehig, 8 S.W. (2d) 998. (3) Defendant's appeal from the order of the court overruling his motion to quash execution does not bring before this court the propriety of the trial court's ruling on the oral motion to set aside the satisfaction of the judgment and on the allowance of an attorney's fee under plaintiff's motion for temporary alimony, etc., and it must be presumed in the absence of a showing to the contrary that the court ruled correctly. Defendant's motion for new trial and motion in arrest of judgment complain only of the trial court's ruling on the motion to quash. Bouillon v. Gaslight Co., 165 Mo. App. 320, 147 S.W. 1107; Bartner v. Darst, 285 S.W. 449; State v. Baldwin, 317 Mo. 766, 209 S.W. 12; Sec. 812, R.S. Mo. 1929.

BLAND, J.

This is an appeal from the action of the trial court in overruling a motion to quash an execution.

The facts show that plaintiff, prior to the 15th day of November, 1937, filed a suit for divorce against the defendant and that the court, on that day, sustained plaintiff's motion for temporary alimony, suit money and attorney's fees, allowing plaintiff the sum of $150 for attorney's fees. The judgment recited:

"Further, the court doth sustain plaintiff's Motion for Temporary Alimony, Support and Maintenance, suit money and attorney's fee in the following respect: The Court doth allow plaintiff the Sum of One Hundred Fifty Dollars ($150) Dollars for her attorney's fees.

"WHEREFORE, it is ordered, adjudged and decreed by the Court that defendant pay plaintiff's attorney the sum of $150 at the rate of $10 per month beginning November 15, and $10 per month on the 15th of each succeeding month thereafter until the sum of $100 has been paid and the further and final sum of $50 when and as any monies shall accrue to the defendant through the John H. Bovard Estate, and in default of one payment let execution issue therefore."

The Honorable W.H.H. Piatt, a member of the Jackson County Bar, represented the plaintiff as her attorney in the divorce proceedings. Defendant did not pay either the plaintiff, or her attorney, the amount or any part thereof allowed her for attorney's fee and her attorney was not paid by her. Mr. Piatt, on December 20, 1937, caused a general execution, and a garnishment in aid thereof, to be issued on the judgment. The Columbia National Bank was summoned as garnishee. The execution was sued out in the name of Mabel R. Bovard, the plaintiff.

It appears that plaintiff and defendant had settled their difficulties and had gone back to live together and, on the 15th day of January, 1938, after the Columbia National Bank was summoned as garnishee, plaintiff satisfied the execution by writing on the margin of the judgment, the following: "This judgment satisfied in full by mutual consent this 15th day of January, 1939. Mabel R. Bovard, plaintiff." The satisfaction of the judgment was not attested by the Clerk.

On January 20, 1938, defendant filed a motion to quash the execution. During the hearing of this motion, Mr. Piatt, by his counsel, orally moved the court to allow the execution to stand to the extent of his attorney's lien and to set aside the satisfaction of the judgment pro tanto.

The court, at the conclusion of the testimony, sustained the oral motion and overruled the motion to quash the execution. Defendant thereafter, filed his motion for a new trial and in arrest of judgment, complaining of the overruling of his motion to quash but not of the sustaining of the oral motion to set aside the satisfaction of the judgment.

Defendant, thereupon, took an appeal from the order overruling his motion to quash the execution.

It is insisted by the defendant that before an allowance for temporary alimony can be made an admission or proof of the husband's ability to pay should be shown, and that the judgment does not recite that any hearing was had as to defendant's financial worth or ability to pay; that the judgment shows on its face that plaintiff's motion was sustained without any evidence to support the allowance.

It is true that such ability must be shown at the trial. [Howey v. Howey, 220 Mo. App. 484.] However, it is not true that the evidence must be recited in the judgment in order for it to be valid. "No particular form of words is usually considered necessary to show the rendition of a judgment. The record of the judgment is sufficient if the time, place, parties, matter in dispute, and the result, with the relief granted, are clearly stated. So, under the ordinary practice, it is not required to set out in the judgment itself the facts on which it is founded; it is sufficient if they are stated in the pleadings and ascertained by the judgment." (Italics ours.) [1 Black on Judgments (2 Ed.), p. 161, See, also 15 R.C.L. 570, 877, 878; Judge v. Booge, 47 Mo. 544; Ervin v. Brady, 48 Mo. 560; Reese v. Cook, 17 Mo. App. 512; Cook v. Hancock, 20 Tex. 2.] There is nothing on the face of the judgment to indicate that it was rendered without the hearing of evidence by the court upon the material issues.

It is insisted by the defendant that the court should have sustained the motion to quash the execution because the judgment had been satisfied in full and, consequently, there was no basis for the execution. We think that this contention must be sustained. [Chilton v. Cady, 298 Mo. 101, 113.]

However, respondent contends that, as the judgment was in his favor, having been made payable to him, it could not have been satisfied without his consent and, further, that the satisfaction, not having been attested by the clerk, was void.

The court rendered the judgment under and by virtue of the authority conferred by section 1355, Revised Statutes 1929, relating to alimony and maintenance. This section provides that such alimony and maintenance shall be decreed to the wife. Her attorney is not therein mentioned. The...