Curlee Clothing Co. v. Boxer

• Decision Date: 28 June 1932
• Docket Number: No. 22024.,22024.
• Citation: 51 S.W.2d 894
• Parties: CURLEE CLOTHING CO. et al. v. BOXER et al.
• Court: Missouri Court of Appeals

51 S.W.2d 894

CURLEE CLOTHING CO. et al. v. BOXER et al.

No. 22024.

St. Louis Court of Appeals. Missouri.

June 28, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by the Curlee Clothing Company and others against Frieda Boxer and others. From a decree in favor of plaintiffs, defendants appeal.

Reversed.

Max Sigoloff, of St. Louis, for appellants.

Paul L. Hale, of St. Louis, for respondents.

HAID, P. J.

This action was commenced by a bill in equity to set aside an order of the probate court granting an order to sell property at private sale and to compel an accounting for the proceeds of all the property covered by the order of sale and for the property covered by the sale remaining in the hands of the defendants. From the decree granting the relief prayed the defendants have appealed.

The petition, in effect, alleged that each of the three plaintiff corporations were creditors of the estate of Benjamin Harry Boxer, deceased; that defendants Frieda Boxer and William D. Boxer were the qualified and acting executrix and executor, respectively, of the estate of said deceased then being administered in the probate court of the city of St. Louis; that Frieda Boxer is the widow and William D. Boxer the brother of the deceased; and that defendant Samuel Greenspan is the father of Frieda Boxer. The petition then alleged that Benjamin Harry Boxer died on or about February 4, 1931, leaving, among other assets, a stock of merchandise and fixtures in a store located at 6225 Easton avenue, Wellston, Mo., of the reasonable value of $18,000; that on or about February 17, 1931, Frieda Boxer and William D. Boxer who appointed executors to serve without bond; that thereafter said Frieda Boxer and William D. Boxer, in their individual capacities and as executors of the estate of the deceased, conspired with Samuel Greenspan to dispose of the assets of the deceased and in furtherance of the conspiracy caused to be appointed on March 4, 1931, Joe H. Iskiwitch, M. Reznikof, and A. Sherman, as appraisers in the probate court; that Iskiwitch was at the time a business partner of William D. Boxer and Reznikof and Sherman were clerks employed in the store belonging to William D. Boxer and Joe Iskiwitch; that in furtherance of the conspiracy the appraisers were prevailed upon to appraise the stock of merchandise and fixtures, being of the reasonable value of $18,000, for a value of $5,822.03, which inventory was filed on March 11, 1931; that on March 19, 1931, the executors, in furtherance of the conspiracy, filed in the probate court their petition for authority to sell at private sale for the sum of $5,000 cash, all of the stock of merchandise and fixtures aforesaid, and that on the same day an order to that effect was granted by the probate court, that the executors, in furtherance of the conspiracy, pretended to sell the stock of merchandise and fixtures in accordance with the order of sale granted by the probate court, to defendant Samuel Greenspan; that in fact the real purchasers were Frieda Boxer and William D. Boxer and Samuel Greenspan, and that said defendants are now the owners of and in charge of the stock of merchandise and fixtures aforesaid; that the sale of this property to these persons was made without notice to creditors and in fraud and as an imposition upon the court and that the order of sale by the probate court was made without knowledge of the real value of the property sold and without knowledge of who the purchasers of said property were; that defendants Frieda Boxer, William D. Boxer, and Samuel Greenspan are rapidly disposing of the assets; and that unless defendants are immediately enjoined from further disposing thereof and said order of sale vacated, the property aforesaid will be disposed of and creditors will have no recourse upon any one for the amount of their just accounts.

Pursuant to this petition, an order to show cause was entered, to which returns were filed by the defendants, but subsequently a stipulation was filed to try the cause on the merits; thereupon an answer was filed by the executrix and executor and a separate answer was filed by Frieda Boxer, William D. Boxer, and Samuel Greenspan. In each of these answers it was set up, among other things, that the petition did not state facts sufficient to constitute a cause of action; that on the face of the petition it appears that plaintiffs had a complete and adequate remedy at law; that it appears on the face of the petition that plaintiffs are not entitled to the equitable relief prayed for; that from the facts alleged in the petition the administration law of this state furnishes ample and full remedy and relief to the plaintiffs on account of the matters and things alleged in the petition; and that said matters and things are within the jurisdiction of the probate court and, therefore, a court of equity is not the proper jurisdiction to seek the relief prayed for.

The record discloses that on May 25, 1931, the parties entered into a stipulation for the sale at auction of all of the remaining property, the proceeds thereof to be paid to the executors, who should hold the same subject to the orders and judgments of the probate court, reserving to the parties the right to appeal from any order or decree of said court.

The bill of exceptions discloses that after the first witness was sworn the defendants objected to the introduction of any evidence for the reasons set out in the answers. The objection was overruled and exception saved. After the entry of the decree the named defendants each filed a motion for new trial and also a motion in arrest of judgment, again setting up the various grounds set up in the answer and/or objection to the introduction of evidence.

We have not set out all the grounds of objection set out in the answers because many of them became immaterial in our view of the case....