Cairo Auto Supply Co. v. Stalion, 25713.
| Citation | 151 S.W.2d 541 |
| Decision Date | 03 June 1941 |
| Docket Number | No. 25713.,25713. |
| Parties | CAIRO AUTO SUPPLY CO. v. STALION (FAJEN, Garnishee; HUNTER, Intervenor). |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
"Not to be reported in State Reports."
Action by Cairo Auto Supply Company, a corporation, against Homer Stalion, alias Homer Stallings, wherein plaintiff recovered a money judgment against defendant and Harry Fajen was summoned as garnishee in aid of execution, and W. J. Hunter, trustee of the bankrupt estate of Homer Stallings, intervened in the garnishment proceeding. From an unsatisfactory judgment, plaintiff appeals, opposed by W. J. Hunter, trustee of the bankrupt estate of Homer Stallings.
Affirmed.
Gerald B. Rowan, of Cape Girardeau, for appellant.
W. J. Hunter, of Cape Girardeau, pro se.
BENNICK, Commissioner.
This is an appeal from the judgment of the Circuit Court of Cape Girardeau County directing the sheriff of such county to pay over to W. J. Hunter, trustee of the bankrupt estate of Homer Stallings, the sum of $273.43 theretofore paid to the sheriff by one Harry Fajen, garnishee of said Stallings, the judgment debtor of plaintiff, Cairo Auto Supply Company, a nonresident of this state.
On January 23, 1940, an execution was issued on the judgment against Stallings, and Fajen was summoned as garnishee in aid of the same. Fajen admitted his indebtedness to Stallings, and the money was paid into court on February 10, 1940.
On March 12, 1940, Stallings filed his voluntary petition in bankruptcy, and was adjudicated a bankrupt on the following day. Thereafter Hunter was duly appointed trustee of his bankrupt estate, and, upon obtaining leave from the referee to intervene, filed his intervention petition in the garnishment proceeding in the state court.
The basis of such intervention petition was that all the proceedings relative to the garnishment, and particularly the things occurring on January 23, 1940, had been had within four months of the filing of Stallings' petition in bankruptcy and his adjudication as a bankrupt; that the execution was issued, service of garnishment had, and the money paid into court at a time when Stallings, the judgment debtor, was insolvent; that Stallings had listed both the debt due him from Fajen, the garnishee, and the judgment debt due from him to plaintiff, in his schedules in bankruptcy which were filed along with his petition on March 12, 1940; and that by reason of all such facts the attempted garnishment was rendered null and void, and Hunter, as trustee of Stallings' bankrupt estate, was entitled to possession and ownership of the fund in court for the benefit of the creditors of the bankrupt.
The court found, as we have already indicated, that the trustee, rather than plaintiff, the garnishing creditor, was entitled to the fund; and from the judgment directing the sheriff to pay the fund over to the trustee, plaintiff has appealed to this court in the usual course.
Under the provisions of the Bankruptcy Act, it is provided that every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable proceedings within four months...
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