Gage v. Gates

• Decision Date: 31 May 1876
• Citation: 62 Mo. 412
• Parties: SETH GAGE. et al., Respondents, v. ELIJAH GATES, Appellant.
• Court: Missouri Supreme Court

62 Mo. 412

SETH GAGE. et al., Respondents,

v.ELIJAH GATES, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

A. H. Vories, for Appellant.

J. D. Strong, for Respondents.

SHERWOOD, Judge, delivered the opinion of the court.

This cause was tried on an agreed statement of facts, resulting in a judgment for the plaintiffs, and the defendant, who is the sheriff of Buchanan county, has appealed.

The statement referred to is, in substance, this:

Frank T. Hall and Mary Hall, husband and wife, in the year 1872 resided in St. Joseph, Mo., the wife being engaged in the millinery business, and having a stock of goods suited to her vocation. Proceedings were instituted by certain creditors in the district court of the United States for the Western district of Missouri, with the view of having the wife declared and adjudged an involuntary bankrupt. The husband was no party to this procedure. Service of petition and order to show cause were duly had upon the wife; but before any adjudication of the matter was reached, the petitioning creditors dismissed their proceedings, and no seizure or possession of property by the United States Marshal occurred during their pendency, nor at any time.

After these occurrences, the wife absconded from this State, leaving a large portion of the stock of millinery in the possession of her husband, who, in like manner, absconded, leaving the property in the possession of one Englehardt.

Thereupon, the plaintiffs commenced suits by attachment against the husband and wife, to recover certain sums of money. The ground of the attachment was non-residence, and publication was duly made as to both of the defendants.

The wife was subsequently dismissed as party defendant. By virtue of the writs of attachment issued in the several causes, the then sheriff of Buchanan county levied on and attached the stock of millinery, as well as other personal property. After the levy of these writs, the proceedings in bankruptcy were, without any further process, notice, or order to show cause, re-instated against the wife by order of the district court. This re-instatement of the cause in and by the district court occurred after the wife had absconded from the State, to which she has never returned. The defendant, Gates, is the successor in office of the former sheriff, Richardson, by whom the writs mentioned were levied and afterwards delivered to the present sheriff, together with the attached property. Special judgments were rendered against the husband, and against the property attached in all of the attachment suits. Subsequent to the rendition of these judgments, the wife was adjudged a bankrupt, without any notice, etc., as before stated.

Under special executions issued on the judgments mentioned, the defendant sold the property attached, and all the right, title and interest of the husband therein, realizing from such sale $1,016.69. The circuit court of Buchanan county then ordered the defendant to pay ratably to the attaching creditors the money arising from the sale referred to. The district court also made an order on the sheriff to show cause, why an order should not issue from that court, commanding him to pay to the assignee in bankruptcy of the wife the proceeds of such sale arising from the stock of millinery; but which order was prior in point of time, is not stated. No order of restraint, injunction, or anything of that nature, was ever issued by the district court, or served on the defendant or the plaintiffs, nor did they have any notice or knowledge of the bankruptcy proceedings against Mrs. Hall before sale took place under the special executions. The sheriff made return to the order of the district court to show cause, etc., that of the proceeds of the sale of the attached property the sum of $661.84 was realized from the stock of millinery, which Mrs. Hall had, while living with her husband and doing business as milliner. Upon this return being made, the district court peremptorily ordered the sheriff to pay to the assignee of Mrs. Hall the sum obtained by selling the stock of millinery. This order was complied with, and the assignee thus became the recipient of the $661.84. The residue of the proceeds of the sale of the property was, it seems, paid by the sheriff in conformity with the order of the circuit court, though this is by no means clear. But as that court only rendered judgment for an amount equal to the sum realized from the sale of the stock of millinery, together with interest on that sum, amounting in the aggregate to $741.26, and as the sum of $661.84 is mentioned in the concluding portion of the agreed statement, as the amount in dispute, we may perhaps not unreasonably infer, that the sheriff did his duty so far as concerned the proceeds of the sale of the property not forming a...