Crecelius v. Bierman

• Decision Date: 23 November 1897
• Docket Number: No. 94633.,94633.
• Citation: 72 Mo. App. 355
• Parties: CHARLES C. CRECELIUS, et al., Appellants, v. PAUL H. BIERMAN, Respondent.
• Court: Missouri Court of Appeals

72 Mo. App. 355

CHARLES C. CRECELIUS, et al Appellants,

v.PAUL H. BIERMAN, Respondent.

No. 94633.

COURT OF APPEALS OF MISSOURI ST. LOUIS

Decided: November 23, 1897

Clopton & Trembley for W. H. Clopton.

The agreement to assign one half of whatever might be recovered, by Crecelius against Bierman, to Clopton, operated as an equitable assignment of that interest, and when the judgment was obtained the equitable assignment became a legal transfer of title. Schubert v. Hirschberg, 65 Mo. App. 579.

The assignment having been made in good faith, before Bierman had become entitled to the sum due under his judgment, the court erred in setting off one execution against the other. R. S. 1889, sec. 8171.

J. K. Hansbrough for respondent.

The assignment of the judgment to Spiegelhalter was fraudulent and void as to Bierman, Crecelius being then, and long before, insolvent. Young v Kellar, 94 Mo. 581; Cheek v. Waldron, 39 Mo. App. 21.

The assignment was of no validity as to Bierman, who, when it was made, and long prior thereto, held matured claims against Crecelius, and was entitled to have them set off against him; and that right could not be defeated by the assignment. Weiss v. Wahl, 5 Mo. App. 408; R. S. 1889, secs. 2384, 2387 1995; Pierce v. Bent, 69 Me. 381; Skinker v. Smith, 48 Mo. App. 91; Freem. on Judg., sec. 427.

The agreement between Crecelius and Clopton, made before the slander suit was begun, that Clopton was to have fifty per cent of the amount recovered as his fee in prosecuting the suit, operated, as between them, as a valid equitable assignment of one half the judgment. Schubert v. Hirschberg, 65 Mo. App 578. But the assignment as to Bierman was absolutely void, he not having consented thereto, both in equity and at law. Love v. Fairfield, 13 Mo 300; Burnett v. Crandall, 63 Id. 410; Beardslee v. Morgner, 73 Id. 22; Loomis v. Robinson, 76 Id. 488; Noonan v. Bank, 88 Id. 372; Leonard v. R'y, 68 Mo. App. 48.

This action is not under section 8171, Revised Statutes 1889, concerning executions; but is maintainable as a common law right, independent of the statute, and under section 8168, providing for set-off by cross-judgments. Skinker v. Smith, 48 Mo. App. 91.

BLAND, P. J.--This case is here by appeal from a judgment of the circuit court (city of St. Louis), on a motion to offset cross-judgments. On April 30, 1896, Charles C. Crecelius recovered in the circuit court, city of St. Louis, a judgment for $ 500 against respondent in an action for slander. In an ejectment suit on April 5, 1894, respondent Bierman recovered a judgment in the circuit court, St. Louis county, against Crecelius and wife for $ 350 damages, and $ 35 per month for monthly rents and profits. On November 16, 1896, respondent recovered in the circuit court, city of St. Louis, a judgment against Crecelius for $ 1, 346.93, in an action on a promissory note due April 13, 1897. On January 6, 1896, execution was issued on the judgment for $ 500 in favor of Crecelius' assignee and against Bierman, returnable to the February term of the court. All three of these judgments were unpaid and in full force on March 8, 1897, when the motion to offset these cross-judgments was heard. This motion was filed on January 29, 1897, and is as follows:

"In the Circuit Court, city of St. Louis, December Term, 1896. Room No. 5. Charles C. Crecelius v. Paul H. Bierman, No. 94633.

"Now comes defendant, and states to the court that on the 30th April, 1896, plaintiff recovered a judgment herein against defendant in the sum of $ 500 and costs of suit, which remains unpaid, and in fullforce against defendant. That on 5 April, 1894, defendant, in a suit by him as plaintiff against plaintiff and one Charlotte Crecelius as defendants in the circuit court of St. Louis county, State of Missouri, recovered a judgment against plaintiff and said Charlotte Crecelius in the sum of $ 350 damages and costs of suit, and $ 35 rents and profits, for one month after judgment, which said judgment remains wholly unpaid and in full force.

"That on 16th day of November, 1896, defendant in a suit by him as plaintiff against plaintiff herein as defendant, recovered judgment in the circuit court of the city of St. Louis, Mo., against plaintiff in the sum of $ 1, 346.93 and cost of suit; which said judgment remains wholly unpaid and in full force against plaintiff.

"That plaintiff and said Charlotte Crecelius are insolvent, and said judgments against them, as aforesaid, can not be collected on execution.

"That on or about 1st May, 1896, said plaintiff, Charles C. Crecelius, for the purpose of hindering, delaying and defrauding his creditors, and especially to prevent this defendant from collecting his said judgment of $ 350 costs and rents recovered as aforesaid, and a note then due from him to this defendant, since merged in the said judgment for $ 1, 346.93, recovered as aforesaid, without any consideration whatever, made a pretended assignment of his said judgment for $ 500 against the defendant, to one Joseph Spiegelhalter; that said Spiegelhalter, at the time of said pretended assignment, knew that said Crecelius was making it for the purpose of hindering, delaying and defrauding his creditors, and permitted the same and consented thereto for the purpose, on his part, of assisting said Crecelius in getting said judgment out of the reach of the creditors, and then knew of the existence of said $ 350 judgment, and of the indebtedness since merged in the $ 1, 346.93 judgment as aforesaid; that he has no bona fide interest in said judgment and is simply holding the same in his name to protect it from plaintiff's creditors and for the use and benefit of plaintiff.

"Wherefore defendant moves the court to set off his said judgment against plaintiff's judgment and award him execution against plaintiff for the amount of his judgments, crediting it with the amount of plaintiff's judgment, and for any further or other relief to which, in equity, he is entitled."

On May 1, 1896, Crecelius made the following assignment of judgment against Bierman, to wit:

"ST. LOUIS, May 1st, 1896.

"For a valuable consideration I hereby assign to Joseph Spiegelhalter all my right, title and interest in and to the judgment for Five Hundred Dollars rendered in my favor on April 30th, 1896, in the circuit court of the city of St. Louis, Mo., in the case of Chas. C. Crecelius v. Paul H. Bierman, the same being No. 94633. Said judgment being against Paul H. Bierman the defendant in said cause.

"CHARLES C. CRECELIUS."

Dr. Spiegelhalter, to whom this assignment was made, testified that the assignment was made with the understanding that he was to be put to no expense or trouble about the collection of the judgment, and when it was collected he was to...