Ex Parte Fuller

• Decision Date: 11 May 1932
• Docket Number: No. 32260.,32260.
• Citation: 50 S.W.2d 654
• Parties: EX PARTE ROBERT T. FULLER
• Court: Missouri Supreme Court

50 S.W.2d 654

EX PARTE ROBERT T. FULLER

No. 32260.

Supreme Court of Missouri.

Court en Banc, May 11, 1932.

Habeas Corpus.

PRISONER DISCHARGED.

J. Roy Smith for petitioner.

Defendant (petitioner) has not refused to appear before the circuit court for an examination concerning the subject of litigation; he has not refused to account to the receiver or the court for anything that he has in his possession or that he can possibly deliver; and the court has not made any finding that he has possession thereof or any part of it, but on the contrary, the court merely finds that if he can't deliver (to plaintiff), then he is delinquent because he can't deliver, and for that he should lie in jail indefinitely. Habeas corpus lies where the judgment sentence or order is fatally defective upon the face of the record as where it lacks the requisite definiteness and certainty. 29 C.J. 54 and cases cited. In Missouri collateral attacks on the judgment applies to commitments for contempt. 29 C.J. 99 — note 47 and cases cited. The case of Ex parte Fowler, 275 S.W. 529, has so many points in common with the present case that the petitioner can hardly point to the several parts of the opinion upon which he relies without lifting the entire opinion for the court's attention, which we respectfully do. The result of this proceeding in the order of March 21, attempts to make a pure money judgment, based upon an alleged violation of an order which mentions no specific sum. No commitment could have been issued upon this. The court attempted to judge the case without the issues being framed. "The issues must be made up before there is anything to try and adjudicate." Ex parte Fowler, 275 S.W. 529. The defendant has at all times in court since the instigation of this action denied under oath, that he has or has under his control the moneys demanded by the plaintiff. The commitment by the court of the petitioner to jail until he pays what he has not, is so ineffectual, so illogical, so puerile that we wonder its futility was not recognized by its author. What is accomplished? Nothing, except a violation of our Constitution! The petitioner's first point in his petition for writ of habeas corpus, says that his imprisonment is illegal in that it is an imprisonment for debt. In the commitment before us the petitioner is sent to jail until he pays the money which the plaintiff demands — an obviously impossible feat. Such a commitment is clearly an attempt to collect a debt, and is therefore an imprisonment for debt. If the court below desired to punish the petitioner for an imagined affront or disobedience, and the legal right to do so existed, then a definite time could have been set in the commitment, but even then it could not have been excessive. Reference to Ex parte Creasy, 243 Mo. 679; overruling Gildersleeve case.

John S. Wright and Hoyt A. Poorman for respondent.

The fact that the act constituting the contempt is also a crime, does not prevent a contempt proceeding if the act is also a contempt of court. 13 C.J. 55: "In the absence of Constitutional or statutory restriction, a court has power to punish an act which is a contempt, notwithstanding such act may likewise be punished by indictment." Ex parte Savin, 131 U.S. 267, 9 Sup. Ct. Rep. 701; In re Brule, 71 Fed. 947; United States v. Debs, 64 Fed. 746. Petitioner argues that since the case was not at issue, the commitment was premature. The receiver was appointed and the order to turn the property over to the receiver was made only after full hearings and appearances by petitioner and his attorney. Such orders are properly and usually made before the case is at issue. To wait until the issues had been settled would have deprived the plaintiff of a remedy to which it was clearly entitled under the circumstances and might have defeated the very purpose sought. 53 C.J. 56. Orders appointing receivers to take charge of property have been approved by this court not only where made before the case is at issue but even without notice to the defendant, where the situation requires it. State ex rel. Fenn v. McQuillian, 165 S.W. 713, 256 Mo. 693; State ex rel. Wurdeman v. Reynolds, 204 S.W. 1093, 275 Mo. 113; McNealy v. Rouse, 264 S.W. 383.

FRANK, J.

Petitioner was committed to the common jail of Jackson County by the Circuit Court of said county for failure to comply with an order made by said court in the case of Radio Manufacturers' Corporation v. Robert T. Fuller and Grace W. Fuller, transacting business under the name of Gate City Radio Company. He invokes our writ of habeas corpus and asks to be restored to his liberty on the ground that his imprisonment is illegal and unlawful.

Our writ issued, and the sheriff of said county in obedience thereto, made his return showing that he held petitioner in custody by virtue of an order and judgment of the circuit court, a copy of which judgment is attached to the sheriff's return, and thereupon he brought the body of the petitioner before this court where a hearing was had and the cause submitted for final disposition.

It appears that the Radio Manufacturers' Corporation by written contract consigned to petitioner, Robert T. Fuller and his wife, Grace W. Fuller, a large number of radios and other merchandise which petitioner and his wife agreed to sell at retail, and from proceeds of sales made remit to Radio Manufacturers' Corporation the agreed cost price of the radios and merchandise sold, as stipulated in said consignment contract. It further appears that petitioner and his wife sold the consigned merchandise for cash but failed to remit to Radio Manufacturers' Corporation the cost thereof, whereupon the Radio Manufacturers' Corporation brought suit in Circuit Court of Jackson County against petitioner and his wife asking for an accounting, the appointment of a receiver and other relief. The circuit court appointed a receiver and made an order directing petitioner and his wife to forthwith deliver to the receiver all consigned merchandise on hand and the proceeds of all such merchandise as had been sold, and render to plaintiff within seven days from the date of said order, a full and complete account in writing of the use, sale, distribution or other disposition of all merchandise theretofore consigned to them, and also of the proceeds derived from any sale or other disposition of any of such consigned property. The receiver demanded of petitioner and his wife that they deliver to him all consigned property on hand and the proceeds of such as had been sold. Upon their failure to deliver to the receiver the proceeds of the sale of the property, the circuit court cited them to appear on a day named and show cause why they should not be adjudged guilty of contempt in failing to obey the order of the court directing them to deliver the proceeds of the sale of said property to the receiver and render a written account of the disposition of said property to plaintiff as specified in said order. A hearing was had on the order to show cause and petitioner was adjudged guilty of contempt and committed to the county jail there to remain until he complied with said order.

At the hearing on the order to show cause, petitioner testified that he had on hand six radio sets and two empty cabinets which he delivered to the receiver. There was no evidence that he had any of the consigned property on hand except that delivered to the receiver. Petitioner further testified that all of the consigned property except that delivered to the receiver had been sold and the money received therefor had been expended by him in the payment of sales commissions, advertising, operating expenses and living expenses, and he was unable to comply with that part of the court's order directing him to deliver the proceeds of the sale of the property to the receiver because he did not have the money. There was not sufficient substantial evidence to authorize a finding that he did have the money. Evidently the circuit court entertained that view of the evidence because it did not find that petitioner had the proceeds of the sale in his possession or under his control. The findings of the court in that behalf is as follows:

"That said Robert T. Fuller and Grace W. Fuller sold all of said 340 radios, received therefor cash in excess of $6500, and at the time said order dated January 25, 1932, was made and entered, either had and have had at all times thereafter, and now have in their possession or under their control not less than $6,151.80, of the proceeds of the sale of the said property consigned to them by plaintiff, or have wrongfully, illegally and contumaciously misapplied, misappropriated and converted said $6,151.80 in whole or in part to their own use; and that said Robert T. Fuller and Grace W. Fuller, and each of them, have wilfully, intentionally, and contumaciously refused and still continue wilfully, intentionally and contumaciously refuse to obey said order made by this court on January 25, 1932."

[1] It thus appears that the court did not find that the petitioner had in his possession the proceeds of the sale of the consigned property. What the court did find was that he either had such proceeds in his possession or under his control, or he had wrongfully, illegally and contumaciously misapplied, misappropriated and converted same, in whole or in part to his own use. The court had no authority to adjudge petitioner guilty of contempt for failing to obey its order by delivering the money representing the proceeds of the sale of the property to the receiver on the ground that he contumaciously refused to do so, without first finding that petitioner had the money in his possession or under his control, and was, therefore, in a position to comply with the order. The law will not permit a court to order a party to do that which he has no power to do, then commit him to jail, there to remain until he performs the impossible. The question in this case...