Fuller v. Smedley

• Decision Date: 24 March 1932
• Docket Number: No. 17580.,17580.
• Citation: 48 S.W.2d 131
• Court: Missouri Court of Appeals
• Parties: FULLER v. SMEDLEY, Sheriff.

48 S.W.2d 131

FULLER v. SMEDLEY, Sheriff.

No. 17580.

Kansas City Court of Appeals. Missouri.

March 24, 1932.

Original petition by Robert T. Fuller for writ of habeas corpus against Jefferson H. Smedley, Sheriff of Jackson County.

Writ quashed.

Before Francis H. TRIMBLE, one of the Judges of the Kansas City Court of Appeals, March 22, 1932, in the vacation of said court.

J. Roy Smith, of Kansas City, for petitioner.

John S. Wright and Hoyt A. Poorman, both of Kansas City, for respondent.

TRIMBLE, P. J.

This is an application for the writ of habeas corpus made by Robert T. Fuller, committed to the Jackson county jail for contempt, by Division 9 of the circuit court of said county in a certain cause pending therein, No. 367,394, Radio Manufacturers Corporation, Plaintiff, v. Robert T. Fuller and Grace W. Fuller, doing business as Gate City Radio Company, Defendants.

The writ issued, and respondent sheriff, 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 is by the sheriff attached to his return, and thereupon he brought the body of the petitioner before me in the courtroom, on Tuesday, March 22, 1932, at 2 o'clock p. m., where a hearing was had, with leave to counsel on both sides to file briefs, which was done, and the matter is now for final disposition.

The Radio Manufacturers Corporation, plaintiff in the above-mentioned case, against said Robert T. Fuller and Grace W. Fuller, brought in said circuit court on January 15, 1932, its suit for accounting, for the appointment of a receiver and for other relief, and alleging the following facts (found to be true by the court in which the petitioner herein [defendant therein] was committed for contempt), to wit:

That said plaintiff, Radio Manufacturers Corporation, pursuant to a certain written contract entered into with it by defendants on November 14, 1931, intrusted and delivered to defendants, for sale on consignment, certain goods, wares, merchandise, radios, and radio tubes, of the aggregate monetary value of $6,451.80, the total amount of the agreed monetary prices to be paid by defendants to plaintiff in accounting for such merchandise as its consignment agent. All of which was itemized in an account marked B and attached to said petition. That defendants agreed and were required to remit to plaintiff twice weekly for said merchandise and the proceeds of the sale of any thereof. That said defendants did not account to plaintiff for said goods, wares, merchandise, radios, and radio tubes, nor pay to plaintiff any of the proceeds from the sale or disposition thereof. That, instead of so doing, defendants had been and were wrongfully disposing of said property and converting same, and the proceeds of the sale thereof, to their own use, contrary to, and in violation of, the terms of the aforesaid written consignment or contract and agreement. That under the contract whereby the consignment of said property was made to defendants they agreed to keep the consigned merchandise separate and apart from other property, and to remit twice weekly as aforesaid any sales made of said property, and that in all such matters, including the handling and sale thereof and the proceeds, defendants were the trustees of plaintiff.

That, on the 25th day of January, 1932, in the above-entitled cause for an accounting, after due notice to defendants and full hearing upon plaintiff's application for the appointment of a receiver therein, defendants appearing in person and by counsel, the circuit court appointed Whitson Rogers receiver of all the goods, wares, and merchandise described in said Exhibit B attached to the plaintiff's petition, and also the proceeds from the sale or distribution of any such property that had been sold or distributed; and said circuit court thereupon directed, commanded, and ordered defendants to render, within seven days thereafter, a full and complete accounting in writing of the use, sale, distribution, or other disposition of all merchandise consigned to them by plaintiff, and also of the proceeds derived from any sale or other distribution of any such consigned property. That Whitson Rogers, on said 25th day of January, 1932, became the duly qualified and acting receiver therein, with his oath and receiver's bond duly filed and approved, and he ever since has been, and is now, the duly qualified and acting receiver thereof, and a duly certified copy of the circuit court's order was at once served upon defendants therein (one of whom is petitioner herein), and said receiver promptly and at once demanded of defendants and of petitioner herein that the said property and the proceeds of that sold be delivered to him. That defendants therein (one of whom is petitioner herein), during the months of November and December, 1931, received from the Radio Manufacturers Corporation (plaintiff therein) pursuant to, under and in accordance with, the aforesaid consignment contract, 352 radios and other merchandise described in said Exhibit B attached to plaintiff's petition. That defendants therein have not paid to the plaintiff therein any proceeds of the sale of said radios and merchandise except the sum of $135, nor have any radios been returned to plaintiff, and defendants therein have turned over to said Whitson Rogers only 8 of said radios, and have willfully failed, neglected, and refused to turn over either 340 of the radios so consigned by Radio Manufacturers Corporation or any of the proceeds of the same or other disposition of any and all such property; and defendants have also willfully failed, neglected, and refused to render in writing any accounting of the use, sale, distribution, or other disposition of said merchandise or of the proceeds derived from the sale or other distribution of any and all such property. That on February 4, 1932, the said circuit court made an order and caused it to be served, together with a true copy of the motion for said order, on each of the defendants therein (one of whom is petitioner herein), commanding them to appear in that court on February 11, 1932, at 11 o'clock a. m., and show cause why they should not be found guilty of contempt of court in failing and refusing to obey the order of said circuit court made January 25, 1932. That the hearing on the order to show cause was, on the return day thereof, duly and regularly continued to February 12, 1932, and then from that date to February 26, 1932, and then from that date to March 8, 1932, and then from that date to March 18, 1932, and then from that date finally to March 21, 1932, at 9:30 a. m. That at said hearing it was shown from the evidence of defendant Robert T. Fuller, and the court so found, that defendants sold all of said 340 radios consigned as aforesaid, and had received therefor cash in excess of $6,500, and that at the time the order of January 25, 1932 for the appointment of a receiver, was made and entered, the defendants therein either had, and have had, at all times thereafter, and now have in 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 controverted said $6,151.80 in whole or in part to their own use, and have willfully, intentionally, and contumaciously refused, and still continue to refuse, to obey said order of January 25, 1932, by turning over and delivering to said receiver any and every part of said goods, wares, and merchandise, or the proceeds derived from any part thereof, and also continue to refuse to obey said order by rendering, within seven days thereafter, a full and complete accounting in writing of the use, sale, distribution, or other disposition of all merchandise consigned to them by plaintiff therein, and also of the proceeds derived from any sale or other distribution of any and all such consigned property.

Wherefore, it was ordered, adjudged, and decreed by said circuit court that said Robert T. Fuller and Grace W. Fuller were and are guilty of willful and contumacious disobedience to, and resistance of, said order of said court, and were and are in contempt,...