Dreyer v. Dickman

• Decision Date: 26 May 1908
• Citation: 131 Mo. App. 660,111 S.W. 616
• Parties: DREYER v. DICKMAN et al.
• Court: Missouri Court of Appeals

111 S.W. 616

131 Mo. App. 660

DREYER v. DICKMAN et al.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

1. DIVORCE—ALIMONY—JUDGMENT.

A judgment for permanent alimony stands for the support of the wife during the lifetime of both parties, unless it is otherwise provided therein or subsequently modified, and it is subject to the incidents of other judgments, except in so far as the statutes expressly or impliedly otherwise provide.

2. SAME.

A judgment for permanent alimony may be revived by scire facias before 10 years have elapsed, and from one 10-year period to another.

3. SAME.

Under Rev. St. 1899, § 2926 (Ann. St. 1906, p. 1683), authorizing the court to award alimony, and providing that on default of payment thereof execution for the collection thereof may be awarded, and under the statute providing that alimony decreed from year to year shall not be a lien on the realty of the husband, but that an execution in the hands of a proper officer shall be a lien on the property so long as the execution remains lawfully in the possession of the officer unsatisfied, etc., a judgment for alimony, requiring the husband to pay a specified sum per month, without providing for any method for the collection thereof except by execution, is within section 3722 (page 2084), limiting the issuance of an execution on a judgment to 10 years from the date thereof.

4. REPLEVIN—EVIDENCE—JUDGMENT.

Where, in replevin for property taken on levy of execution, it appeared that plaintiff at the time of the levy was rightfully in possession of the property as executor and trustee under the will of a decedent, who, when she died, was in possession claiming the property as her own, and defendants had no right to the property, except on the theory that it was subject to levy for a judgment against plaintiff, a judgment for defendants could not be sustained. where such judgment would not support a valid execution.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action of replevin by Rudolph H. Dreyer, executor and trustee of Annie St. Gemme Dreyer, deceased, against Joseph F. Dickman and another. From a judgment for defendants, plaintiff appeals. Reversed.

Barclay, Shields & Fauntleroy, for appellant. Jas. L. Hopkins and Geo. P. Burleigh, for respondents.

GOODE, J.

This is an action of replevin, instituted by the appellant, as executor and trustee of the estate of Annie St. Gemme Dreyer, deceased, under her last will. By a residuary clause of said will the deceased devised and bequeathed to appellant her real and personal property not previously disposed of, to have and to hold in trust for the benefit of Susan Elizabeth St. James, mother of the deceased, and Samuel Talbot Jones and Felix Sargent Jones, sons of the deceased. The will gave appellant full power to invest the property for the benefit of the named beneficiaries and pay them the income and proceeds for their support and maintenance. Power to sell said property for the purpose of changing the investment was also given to appellant, and it was provided that in case of the death of any of the beneficiaries the property should be held for the benefit of the survivors. This will was executed November 10, 1904, and the testatrix died the 22d of the same month. The will was duly admitted to probate, letters testamentary were issued to appellant, and he entered on the discharge of his duties, and was in possession of the property in controversy under the will, at the time it was levied on by respondent Joseph F. Dickman, as sheriff of the city of St. Louis. This levy occurred under and by virtue of an execution issued on a certain judgment in favor of respondent Ada G. Dreyer and against appellant Rudolph H. Dreyer. When appellant married Annie St. Gemme Dreyer, he was a widower and she was a widow, and the two sons named as beneficiaries in her will were her children by a former husband. The respondent Ada G. Dreyer was the former wife of appellant. She obtained a decree of divorce from him May 26, 1894, and a judgment for permanent alimony at the rate of $60 a month; the first payment to be made on June 25, 1894, and the other installments to follow thereafter on the 25th day of each succeeding month. This alimony was not paid by appellant, and when the execution involved in the present controversy was issued it had accumulated to the amount of $8,864.80. The date of the execution was November 30, 1904. It was levied on the property involved in the present action, which consisted of bookcases, books, rugs, chairs, pictures, tables, dishes, and other household furniture. Though said property was bequeathed by Annie St. Gemme Dreyer to appellant as trustee for the benefit of her mother and sons, it is contended by respondent that in truth it was the property of appellant, Rudolph H....