Francis v. Francis

• Decision Date: 02 November 1915
• Docket Number: No. 14082.,14082.
• Citation: 179 S.W. 975
• Parties: FRANCIS v. FRANCIS.
• Court: Missouri Court of Appeals

179 S.W. 975

FRANCIS v. FRANCIS.

No. 14082.

St. Louis Court of Appeals. Missouri.

November 2, 1915.

Rehearing Denied November 23, 1915.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Ida B. Francis against Richard I. Francis. From an order, modifying alimony allowed plaintiff and quashing an execution and writ of garnishment to enforce the alimony originally awarded, plaintiff appeals. Affirmed.

On June 2nd, 1903, a judgment was entered in the circuit court of the city of St. Louis, divorcing the plaintiff, Ida B. Francis, from the defendant, Richard I. Francis, awarding plaintiff alimony in the sum of $40 per month, payable on the first of each and every month "until the further orders of this court," awarding her the care and custody of the children of the parties, and adjudging costs in favor of plaintiff and against defendant. No execution appears to have issued on this until June 13th, 1912, when an execution, numbered 33, to the October, 1912, term, was issued in favor of plaintiff and against defendant for the sum of $6984.84, that being the amount of alimony which had accrued and was unpaid at that date. Under this execution the interest of defendant in certain realty appears to have been levied upon, an employer of defendant summoned as garnishee. Thereafter, as appears by stipulation on file, and on August 20th, 1912, plaintiff and defendant entered into an agreement in writing and entitled in the cause in which it is set out that defendant had paid plaintiff six hundred ($600) dollars, and that in consideration thereof, the court,

"by consent of the plaintiff and defendant in the above-entitled cause shall render a judgment, order or decree discontinuing the accrual of alimony in said cause and ordering that said defendant, Richard I. Francis, pay said plaintiff, Ida B. Francis, the sum of one dollar ($1.00) alimony in gross, the said Ida B. Francis hereby acknowledged that the said six hundred dollars ($600) and the one dollar ($1.00) so received by her are accepted in full payment and satisfaction of all sums of alimony that have accrued or may hereafter accrue, either as alimony pendente lite, suit money, attorneys' fees, or temporary or permanent alimony from month to month or alimony in gross."

The agreement further provided that Ida B. Francis would appear in the court wherein the order was obtained on September 26th, 1912, or as soon thereafter as may be convenient to the court, and acknowledge satisfaction of the judgment and cause satisfaction to be entered of record on the minutes thereof and properly signed by her, attested by the clerk.

It was further agreed between the parties that any and all executions heretofore issued in the cause shall be quashed and held for naught and the garnishment proceeding brought by plaintiff in the cause against the garnishee named, garnisheeing the wages of Richard I. Francis, should be "and are hereby dismissed," and the garnishee authorized to pay Richard I. Francis any and all sums of money now due him from it, and the levy or levies under the execution on any and all real estate in the city of St. Louis "are hereby released." This is signed by plaintiff and defendant and acknowledged by Ida B. Francis and Richard I. Francis be-before a notary public August 20th, 1912. On the same date, that is, August 20th, Ida B. Francis executed another instrument, reciting the obtaining of the decree of divorce and that it awarded alimony and suit money, the alimony at the rate of $40 per month, beginning June 2nd, 1903, and setting out that the parties "are desirous of setting in full all claims for alimony, past, present and future, as also suit money," it was agreed that in consideration of the premises and of the payment of $600, "the receipt of which is acknowledged," Ida B. Francis releases and discharges Richard I. Francis from any and all claims she may have upon him by way of alimony, past, present or future, or otherwise, or for suit money, and further agrees to satisfy or cause to be satisfied the decree and judgment for alimony or suit money, the satisfaction to be of record and in full payment and satisfaction thereof, and that in default thereof Ida B. Francis authorized an attorney at law named to satisfy the judgment in full for all alimony, past, present and future, and suit money at any time after fifteen days had elapsed from September 25th, 1912. This was acknowledged before a notary public by Ida B. Francis. Following this and on September 12th, 1912, Ida B. Francis caused a notice to be served on the attorney named, on the clerk of the circuit court and on Richard I. Francis, to the effect that she had revoked "and do hereby revoke" all power and authority conferred upon the attorney by virtue of the instrument of August 20th, notifying the clerk that she had revoked it, and that he (the clerk) was not to enter of record or in court any satisfaction or attempted satisfaction of the judgment, and notifying Richard I. Francis that the stipulation entered into between her and him, of August 20th, "being void in law, I hereby withdraw my consent thereto."

We gather from the abstract, although that is not distinctly set out, that after service of these notices another execution, also numbered 33, was issued on the order of the then attorney for plaintiff on the judgment of June 2nd, 1903, for the accrued alimony specified in that decree. It also seems that a new levy on real estate was made under this last execution and process of garnishment sued out and served on the same party summoned under the former execution. The date of the issue of the second execution is not stated but it is referred to in the judgment of the court as execution No. 33, also returnable to the October, 1912, term of the court.

Afterwards, and on October 5th, 1912, and during the October term of the court, the stipulations which had been signed by the parties were filed and thereafter and at that term defendant filed a motion to quash the execution and to release the garnishee from the summons. This motion sets out the judgment for alimony of date June 2nd, 1903, and that the plaintiff by and through her attorney named had issued an execution for the collection of the accrued alimony; that that attorney had had a summons issued against the party named as garnishee of the defendant and had ordered a levy upon the real estate standing in the name of the defendant. The motion further set out that as a result of this garnishment proceeding, evidently referring to that under the first execution, defendant had sought out plaintiff and her attorney, and in good faith agreed and contracted with plaintiff as above set out; that thereupon defendant had borrowed $601, the amount necessary to pay plaintiff in accordance with these agreements and did pay her the sum of $601, but as the court was not in session at the time, it was provided, as set out in these agreements, that proper orders should be entered of record as soon as the court could convene and the parties could be heard; that in pursuance of the agreement plaintiff had released the garnishee from this summons and had released the real estate levied upon under the execution theretofore issued in the cause. It is further averred that defendant had paid the sheriff the costs of the execution, and that plaintiff had contracted, in good faith, to appear in court and enter satisfaction of the judgment in pursuance of the contracts and agreements entered into as above set out. Averring that in violation of the agreement and contract entered into and partially performed by plaintiff, another attorney acting in the name of plaintiff has caused to be issued a summons to the garnishee named, returnable to the December term, which summons and the execution then issued, defendant moves the court to set aside and quash. This motion was signed and sworn to, as we gather by defendant. On the same day defendant filed a further motion in the cause, moving the court to enter an order,

"setting aside the order heretofore made and entered for alimony and maintenance of the plaintiff (the former wife of defendant), and to enter an order of record allowing plaintiff the sum of $1.00 for alimony in gross."

The reasons assigned are a repetition of the agreements between the parties as before set out. It is further again averred, in this latter motion, that defendant had paid plaintiff the $601 on August 20th, and that in execution and performance of her part of the contract plaintiff had released the garnishment proceedings and the execution levied on the real estate of defendant. The motion concludes with a prayer that the court enter of record an order to the effect that by consent of the parties the allowance heretofore made plaintiff be set aside and alimony in gross in lieu of that theretofore allowed, be now awarded plaintiff in the sum of $1.00.

The cause came on for hearing on these motions on December 2nd, 1912, the parties appearing by their respective attorneys and the court proceeded to hear them on a stipulation which embraced the agreements above set out as well as the revocation of them by the plaintiff; found that plaintiff, in the stipulations and agreements "and from admissions of plaintiff's counsel made in open court, freely executed, stipulated and agreed that the court should modify, by the consent of both parties hereto, the former allowance of alimony, and the plaintiff further duly acknowledged the execution of said stipulations and agreements before a notary public on, to-wit, August 20th, 1912;" that both parties had agreed and consented to the modification of the allowance for alimony as set forth in the stipulations and agreements, and the court accordingly found that the order of alimony entered on June 2nd, 1903, should be modified as follows:

"It is therefore considered and adjudged by the court that the order of June 2nd, 1903, wherein plaintiff was allowed the sum of $40...