Collier v. Williams, WD
| Decision Date | 27 October 1981 |
| Docket Number | No. WD,WD |
| Citation | 625 S.W.2d 634 |
| Parties | Theodore COLLIER, Appellant-Plaintiff, and Thaine Q. Blumer, Appellant, v. J. D. WILLIAMS, Respondent-Defendant, and Kansas City, Missouri, Respondent-Intervenor. 32185. |
| Court | Missouri Court of Appeals |
Dean A. Hodapp, Kansas City, for appellant.
Aaron Wilson, Nordahl Holte, and Dan Jackson III, Kansas City, for respondent-intervenor City of Kansas City.
Allan R. Browne, Kansas City, for respondent-defendant Williams.
Before CLARK, P. J., and PRITCHARD and WASSERSTROM, JJ.
This appeal, continuing litigation earlier reported in Collier v. Consolidated Cab Co., 591 S.W.2d 391 (Mo.App.1979), is prosecuted from an order directing Theodore Collier, the judgment creditor, and Thaine Q. Blumer, his attorney, to repay the sum of $19,289.42 erroneously withdrawn from the registry of the court. The issues are whether recovery of the funds, admittedly paid over by mistake, may be accomplished in the manner attempted and whether client and counsel are jointly and severally liable.
The origin of the present problem was a garnishment by Collier, a judgment creditor of J. D. Williams and Consolidated Cab Co., attaching funds which Williams had deposited with Traders National Bank in compliance with self-insurance ordinances of Kansas City. The money was paid into the registry of the court and, in a contested proceeding, the trial court determined that Collier was entitled to execution and levy as a creditor of Williams and the cab company and could lawfully attach the account at Traders Bank. On appeal, however, the judgment was reversed in the opinion above noted which held the deposit restricted to a special purpose and not subject to garnishment by general judgment creditors.
The date of the judgment ruling the funds subject to execution by Collier was August 11, 1978. Timely appeal of that judgment was prosecuted and, the City of Kansas City being a party appellant, no supersedeas bond was required to stay execution. Rule 81.09(a). Despite pendency of the appeal and notice to Blumer that an appeal had been taken, Blumer applied to the trial court for an order to disburse the funds held in the registry of the court. Without notice to the adverse parties, the court on October 5, 1978 ordered the funds paid and, on the same date, Blumer obtained a check from the Court Administrator payable jointly to himself and Collier for $19,289.42.
After rendition of the mandate in Collier v. Consolidated Cab Co., supra, respondents, Williams and the City of Kansas City, apparently discovered for the first time that the disputed fund was no longer in the registry of the court but had been withdrawn by Blumer more than a year before. Respondents thereupon moved for restitution of the funds. The record reflects no action by the court on that motion for some eight months. The next entry is an "Order of Restitution" dated September 3, 1980, sustaining the motion and ordering that defendant Williams recover from Collier and Blumer $19,289.42 and interest " * * * for which execution shall issue." Nothing here indicates what notice, if any, preceded entry of this order, how the liability of Collier and Blumer was established and what beyond the bare content of the motion was considered. Particularly noteworthy is the fact that the September 3, 1980 order provided no relief for the City of Kansas City although the City as intervenor had in April of 1980 filed its application asserting an interest in the fund as trustee for the benefit of claimants against Williams.
On October 2, 1980, a conference among the court and counsel for all the parties was held and reported. The conference was evidently prompted by the joint motion of Williams and the City of Kansas City to amend the September 3, 1980 order to provide that Collier and Blumer repay to the Court Administrator the sum withdrawn plus interest deleting any adjudication as to entitlement by Williams for direct recovery against Collier and Blumer. At this hearing it was for the first time established of record that Blumer had indeed withdrawn the funds by the Court Administrator's check. By further agreement it was shown that the check payable to Collier and Blumer jointly had been endorsed by each and that the check had been deposited to the account of "Blumer & Nally Trust" at the Mission State Bank. Subsequent disposition of the funds was neither disclosed nor discussed.
At the conclusion of the conference, the court entered its "Amended Order Of Restitution" dated October 2, 1980, the order which is the subject of this appeal. The order directed Collier and Blumer to repay to the Court Administrator $19,289.42 plus interest, " * * * for which execution shall issue." On appeal, Blumer contends the respondents failed to prove what amount, if any, Blumer received from the proceeds of the Court Administrator's check in the division of that recovery between himself and his client Collier and that such proof is prerequisite to any obligation he may owe for restitution. He also contends that the order which purports to authorize execution cannot be operative as to him because he has not been served with summons or complaint and he is not a party to the case. 1
The progress of this case has been marked by a series of orders improvidently sought and obtained. With prior notice that the appeal had been perfected, Blumer had no warrant to seek distribution of the special deposit and the court, being charged with notice as to its own records, should have...
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Williams v. Blumer
...to the court administrator. This prompted an appeal prosecuted by Blumer but not by his client Collier, Collier v. Williams, 625 S.W.2d 634, 636 (Mo.App.1981) ("Collier II"). The Collier II ruling dismissed that appeal. Judge Clark, writing for the court, was critical of the record on appea......