Durst v. Townes

• Decision Date: 25 September 1930
• Citation: 31 S.W.2d 583,224 Mo.App. 675
• Parties: HARRY D. DURST, ADMINISTRATOR OF ESTATE OF ALICE TOWNES ROGERS, DECEASED, RESPONDENT, v. MARGARET TOWNES, RESPONDENT, MOSS S. SILVERFORB, APPELLANT
• Court: Missouri Court of Appeals

31 S.W.2d 583

224 Mo.App. 675

HARRY D. DURST, ADMINISTRATOR OF ESTATE OF ALICE TOWNES ROGERS, DECEASED, RESPONDENT, v. MARGARET TOWNES, RESPONDENT, MOSS S. SILVERFORB, APPELLANT

Court of Appeals of Missouri, Springfield

September 25, 1930

Appeal from Greene County Circuit Court.--Hon. John Schmook, Judge.

AFFIRMED.

Judgment affirmed.

Chas N. Sadler and R. W. Cummins for appellant.

James L. Hornbostel for respondent, Margaret Townes.

Durst & Durst for respondent, Harry D. Durst.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH J.

--We accept and adopt the statement of appellant in this case, which is as follows:

"This is an interpleader action brought by Harry D. Durst as administrator of the estate of Alice Townes Rogers, deceased, against Margaret Townes and Moss H. Silverforb. The petition charges in substance that Harry D. Durst is the duly appointed, qualified and acting administrator of the estate of Alice Townes Rogers, deceased; and as such entitled to one-fourth of her estate; that he had finally administered said estate, paid all indebtedness and after so doing there remained in his hands the sum of five hundred fifty-eight dollars and one ($ 558.01) cent due said Margaret Townes as such heir; that the probate court had made a final order of distribution; that before said order of distribution was made he was served with a notice of attorney's lien by Moss H. Silverforb, claiming one-half interest in the distributive share of said Margaret Townes; that he was also served with an assignment of said one-half interest by said Margaret Townes; that said Margaret Townes claimed that said contract of employment and assignment were void; that he did not know to whom the money should be paid; that he had already paid to said Margaret Townes one-half of her distributive share and was holding two hundred seventy-nine ($ 279) dollars; he then asked to be permitted to pay the same into court and that said Margaret Townes and Moss H. Silverforb be required to interplead.

"Within due time defendant Moss H. Silverforb filed his answer and interplea denying the right of said plaintiff to interplead, denying that said plaintiff did not know to whom the money belonged, denying that the plaintiff was a disinterested stakeholder, and praying the court to refuse to permit him to pay the money into court or to require said defendant to interplead. By way of interplea said defendant set up and pleaded his contract of employment by said Margaret Townes in which she agreed to pay him fifty (50) percent of whatever might be received by her and also setting up the assignment made thereafter and prayed the court to refuse to permit said plaintiff to interplead but that he be ordered to pay the same to said defendant.

"Defendant Margaret Townes filed an answer and interplea in which she admitted the allegations of plaintiff's petition, admitted that she signed a contract but pleaded that she understood that defendant Silverforb was to receive fifty (50) per cent of all sums over and above five hundred and fifty-eight dollars and one ($ 558.01) cent, admitted that she signed assignment but charged that she did it under duress, prayed that the money be ordered paid to her."

On October 19, 1929, the court took up the question of the right of the plaintiff to interplead and determined and entered an order that the plaintiff was entitled to interplead, and by said judgment and order permitted the plaintiff to pay said money into court and after allowing the plaintiff thirty-five dollars out of said fund, as an attorney's fee, for filing said petition, fully discharged the plaintiff. The defendant Moss H. Silverforb, objected to the court's order permitting the interplea, the payment of the money into court and the discharge of the plaintiff, and saved his exceptions at the time.

The cause was continued and on November 19, 1929, a hearing was had before the court upon the claims of the defendants, Moss H. Silverforb and Margaret Townes, and after the evidence was introduced the court took the matter under advisement until December 10, 1929, and on said date entered its decree and judgment in favor of defendant Margaret Townes, and ordered said sum of money, less the $ 35 allowed the plaintiff, paid to her, and assessed the costs against the defendant Silverforb, over his objection and exception at the time.

On December 13, 1929, defendant's motion for new trial, motion in arrest of judgment, and motion and request for finding of facts and declarations of law were all overruled, and exceptions saved.

In due time an appeal to this court was allowed.

The plaintiff, Harry D. Durst, administrator, has filed a motion in this court to dismiss the appeal, as to him, for the reason that the abstract of record filed by the appellant shows on its face that this court never acquired jurisdiction of this cause so far as Harry D. Durst, administrator, is concerned; that the record shows upon its face that no valid appeal was ever taken from the circuit court on the issues tried between appellant and the plaintiff. Paragraph four of the motion to dismiss the appeal being as follows:

"(4) Because all the records of this proceeding so far as the issues between appellant and this respondent are concerned show that upon a...