Ex Parte Koehler

• Decision Date: 06 May 1913
• Citation: 156 S.W. 982,174 Mo. App. 297
• Parties: Ex parte KOEHLER.
• Court: Missouri Court of Appeals

156 S.W. 982

174 Mo. A. 297

Ex parte KOEHLER.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

1. CORPORATIONS (§ 523) — EXECUTION — SUPPLEMENTARY PROCEEDINGS — STATUTES — CONSTRUCTION.

Rev. St. 1909, § 2248 et seq., providing that, when an execution against the property of a judgment debtor is returned unsatisfied, the judgment creditor may obtain an order for the examination of the judgment debtor, does

not include persons not parties to the cause, and does not include the officers of a corporation, notwithstanding section 8054, providing that, when the word "person" is used, it shall be held to include corporations, and the judgment creditor has other adequate remedy.

2. EXECUTION (§ 362) — SUPPLEMENTARY PROCEEDINGS — STATUTES — CONSTRUCTION.

Rev. St. 1909, § 2248 et seq., providing for the examination of a judgment debtor after return of execution unsatisfied, is penal, and the court cannot, by construction, extend it to any one not clearly within its letter; but it must be construed strictly, both as to the cases embraced within its terms and as to the method to be pursued.

3. EXECUTION (§ 374) — PROCEEDINGS SUPPLEMENTARY TO EXECUTION — STATUTES — COMPLIANCE.

The court, ordering the examination of a judgment debtor after return of execution unsatisfied, must, as required by Rev. St. 1909, § 2249, find from the evidence before it that there is reasonable ground to believe that the judgment debtor has property subject to execution, or has conveyed or attempted to convey it with a design to defraud creditors.

4. CORPORATIONS (§ 523) — EXECUTION — PROCEEDINGS SUPPLEMENTARY TO EXECUTION — EXAMINATION OF JUDGMENT DEBTOR — AFFIDAVIT — REQUISITES.

An affidavit in support of an order for the examination of a judgment debtor, a corporation, and its officers, after return of execution unsatisfied, which avers that the affiant is informed and believes that defendant has property subject to execution, but does not aver that it has conveyed or attempted to convey its property to defraud its creditors, and which avers that the property subject to execution, and which it has concealed, consists of unpaid liability of stockholders, and that the officers are familiar with the facts concerning the identity of the stockholders, and their residence, and the extent of their liability, and that the officers are to be examined as to all other facts concerning the assets of the corporation, is insufficient to justify an order, since the liability on unpaid stock subscriptions and the names of stockholders may be ascertained in a different proceeding.

Application for writ of habeas corpus by Frank G. Koehler for his discharge from custody under an attachment issued for his failure to appear and be examined as a witness after execution. Petitioner discharged.

William Hilkerbaumer, of St. Louis, for petitioner. Fordyce, Holliday & White and Fred Armstrong, Jr., all of St. Louis, for Albert S. Baker.

REYNOLDS, P. J.

In May, 1909, one Baker brought his action against the Standard Truck & Forging Company, a corporation, the action brought in the circuit court of the city of St. Louis. Service was had on the corporation defendant, as appears by the return of the sheriff to the summons in that action, by delivering a copy of the writ and petition to one Frank G. Koehler, its president. The corporation defendant appeared, demurred, that being overruled, filed an answer, the cause was set for trial, both parties appeared by their attorneys and introduced witnesses, the defendant, among other witnesses, introducing Mr. Koehler, who testified that he was president of the defendant corporation. This occurred in December, 1910. A motion for new trial was filed by the defendant and sustained. The cause was afterwards set for trial on the 2d of April, 1912, plaintiff appearing, but defendant not appearing, judgment was rendered against the defendant for $4,983.12 and costs. No appeal was ever taken from this judgment. Afterwards an execution was issued on this judgment and returned nulla bona and on October 23, 1912, plaintiff filed a petition in which is set out the recovery of the judgment, the issue of the execution and the return of that by the sheriff nulla bona. The motion or petition then proceeds:

"Plaintiff further states that he is informed and believes, and has reasonable ground to believe, that the defendant herein has property subject to execution and that among said property is an unpaid stock liability of various stockholders in said defendant company, but that the names of said stockholders are unknown to plaintiff.

"Wherefore, plaintiff prays that, in accordance with section 2248 of the Revised Statutes of Missouri, 1909, this court require said defendant to appear before this court at a time and place in such order to be named, to undergo an examination under oath, touching its ability and means to satisfy said judgment.

"Plaintiff further prays that this court require defendant to respond to this order in the person of its president, Frank G. Koehler, its secretary, William Schwarting, and such other officers and agents as may be familiar with all or any part of the facts concerning the identity of its stockholders, their present residence, the extent to which their stock may have been paid and the manner in which payment was made, if any, and all other facts concerning the property and assets of the company."

This motion or petition is signed, "Albert S. Baker, by Fred Armstrong, Jr., Attorney," and to it is attached an affidavit to the effect that "Fred Armstrong, Jr., being on his oath duly sworn, deposes and says that all the facts stated in the above motion are true according to his best knowledge and belief." This is signed, "Fred Armstrong, Jr.," and the customary jurat affixed by a notary public. Nothing appears to have been done under this motion, but afterwards what is called a "Renewed Motion for Examination of Defendant" was filed. This renewed application after setting out the filing of the former one, then recites that:

"Whereas, the granting of an order in pursuance of said motion was opposed by the defendant and others, necessitating a consideration of said matter by the court and a continuance from time to time and from court term to court term of said matter; and

"Whereas, after a full consideration of said matter this Honorable Court granted an order in accordance with said motion overruling all objections to the issuing of said order; but,

"Whereas, some question has been raised as to the validity of said order on the ground that proper orders of continuance were not entered by the court to maintain the matter on its docket from time to time and from term to term;

"Now, without admitting that the order heretofore issued by the court for the examination of defendant in accordance with said previous motion is invalid, but merely in order to place the matter beyond possible dispute, plaintiff herein renews and again makes his application for examination of the defendant and hereby files this, his motion for examination of defendant, as follows."

Then follows the former motion which is copied into this renewed motion verbatim. This is signed, "Fred Armstrong, Jr., Attorney," who makes affidavit before a notary public that the facts stated in the above motion are true according to his best knowledge and belief.

It is recited in the petition for the writ of habeas corpus that proof of service of the order requiring defendant, in the person of its president, to appear and undergo an examination under oath touching the ability of the defendant to satisfy judgment rendered in the cause was filed. This is the order which appears to have been made by the court:

"It appearing to the court that heretofore, to wit, on the 10th day of March, 1913, an order was made by this court in the above cause, requiring the defendant in the person of its president, Frank G. Koehler, its secretary, William Schwarting, and such other officers and agents as may be familiar with all or any part of the facts concerning the identity of its stockholders, their present residence, the extent to which their stock has been paid, and the manner in which said payments were made, if any; and all other facts concerning the property and assets of the defendant company, to appear in this court and in Division No. 9 thereof, on March 14th, 1913, at 10:00 o'clock a. m., then and there to undergo an examination, under oath, touching the ability and means of the defendant to satisfy the judgment rendered in this cause in favor of plaintiff and against defendant on the 2nd day of April, 1912, for the sum of $4,983.12, interest and costs; and it further appearing to the court that the sheriff of the city of St. Louis has made return on said order, by delivering a copy of the same to the within named Standard Truck & Forging Company and Frank G. Koehler, on the 13th day of March, 1913, and that William Schwarting cannot be found in the city of St. Louis; and it further appearing to the court that said defendant and its president Frank G. Koehler has failed to comply with said order made and entered March 10th, 1913, although duly called, now come not; upon motion of plaintiff by attorney, it is now ordered by the court that the sheriff of the city of St. Louis be and he is hereby commanded to attach Frank G. Koehler by his body and him safely keep so that he have his body before this court and in Division No. 9 thereof on Friday, March 21st, 1913, at 10:00 o'clock a. m., then and there, to testify and the truth to say, as far as he may be familiar with all or any part of the facts concerning the identity of the stockholders of the Standard Truck & Forging Company, their present residence, the extent to which their stock has been paid, and the manner in which said payments were made, if any, and all other facts concerning the property and assets of the defendant company, and to undergo an examination, under oath, touching...