Cook v. McCoy

• Decision Date: 05 July 1938
• Docket Number: No. 5895.,5895.
• Citation: 118 S.W.2d 1043
• Parties: COOK v. McCOY et al.
• Court: Missouri Court of Appeals

118 S.W.2d 1043

COOK v. McCOY et al.

No. 5895.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

"Not to be published in State Reports."

Action by Mrs. C. A. Cook against Dan McCoy and another in the nature of equitable garnishment, wherein garnishee was administrator of an estate in which no final settlement had been made. Judgment for defendants after demurrer to petition was sustained and plaintiff refused to plead further, and plaintiff appeals.

Affirmed.

Blanton & Montgomery, of Sikeston, for appellant.

Bailey & Bailey, of Sikeston, for respondents.

ALLEN, Presiding Judge.

This is an action brought by plaintiff, appellant herein, in the nature of equitable garnishment, against Dan McCoy, personally and Dan McCoy, administrator of the estate of Mary E. McCoy, deceased.

The trial court sustained a demurrer to the petition, dismissed the petition and entered judgment for defendants, respondents herein. Plaintiff refused to plead further and has appealed to this court.

Inasmuch as the petition and the allegations upon which it is bottomed are determinative of the case, we will quote the petition in full:

"Comes now the plaintiff, Mrs. C. A. Cook, by Blanton and Montgomery, her attorneys, and by leave of court first had and obtained files this her first amended petition and states that both she and the defendant, Dan McCoy, are citizens and residents of Scott County, Missouri, and that the said Dan McCoy, and Dan McCoy, administrator of the estate of Mary E. McCoy, deceased, are one and the same person.

"Plaintiff further says that the said Mary E. McCoy died intestate while a resident of Scott County, on or about the ____ day of ____, 1935, leaving as her next of kin and only heirs at law her two sons, to-wit: Lou McCoy and the aforesaid Dan McCoy, and that the said Dan McCoy is the duly appointed, qualified and acting administrator of the estate of the said Mary E. McCoy, deceased, and is in process of administering said estate in the Probate Court of Scott County, Missouri.

"Plaintiff further states that the aforesaid Lou McCoy and Dan McCoy as heirs at law of the said Mary E. McCoy, are each entitled to a distributive share of one-half of said estate, and that the said Dan McCoy, in addition to his own distributive share, claims to own and be entitled to all of the distributive share of the said Lou McCoy.

"Plaintiff further says that she is not advised of the amount of money or property making up the assets of said estate, nor the amounts of the distributive shares of either of the aforesaid heirs, but is informed and believes that after the payment of all the lawful debts of said estate, a substantial sum of money amounting to several hundred dollars in excess of all exemptions allowed him by law, will be due the said Dan McCoy.

"Plaintiff further says that the defendant, Dan McCoy, gave and published notice of his intention to make final settlement of the aforesaid estate at the February, 1937 term of the Probate Court of Scott County, Missouri, but says that during the said February term of said Probate Court, final settlement was not made but was continued to the May, 1937 term of said Probate Court, where it is now pending.

"Plaintiff for her cause of action states that at the March, 1930 term of the Circuit Court of Scott County, Missouri, she recovered a judgment against the defendant, Dan McCoy, for the sum of $1,222.56 plus attorney's fees and costs, and that said judgment has been drawing interest at the rate of 8 per cent since that date, and that numerous executions have been issued on such judgment in an effort to collect same, but that the sheriffs to whom said executions were directed were unable to find any property of the defendant, McCoy, in his individual capacity, out of which to collect any part of said judgment, but the defendant, Dan McCoy, is wholly insolvent, and that said executions have been duly returned by said sheriffs with nothing collected, and no property of the defendant found out of which to collect, and that the defendant has no property save and except the defendant's share of the aforesaid estate as above set out, out of which any part of said judgment can be collected.

"Plaintiff further says that she and her attorneys have earnestly endeavored, since the rendition of the aforesaid judgment to locate some property of the defendant, Dan McCoy, out of which to collect the aforesaid judgment, but that she and her attorneys have been wholly unable to discover any property of the defendant out of which to collect said judgment, or any part thereof, and that the plaintiff now has no knowledge of any property of the defendant out of which to collect any part of said judgment other than his share of the aforesaid estate.

"Plaintiff further states that on or about the second day of February, 1937, she obtained issuance of a new execution on the aforesaid judgment, directed to the sheriff of Scott County, Missouri, and that said sheriff, by direction of plaintiff's attorneys, in an effort to discover assets of the defendant, Dan McCoy, out of which to collect said judgment, summoned the defendant, Dan McCoy, as administrator of the aforesaid estate of Mary E. McCoy, deceased, as garnishee, but says that the said Dan McCoy, relying upon Section 1398, R. S.1929, Mo.St.Ann. § 1398, p. 1613, filed a motion to quash said garnishment proceedings and the interrogatories propounded by plaintiff in pursuance thereof as premature because no order of final distribution had been made by the probate court in said estate, which motion to quash was by the court sustained.

...