In re Knaup

• Decision Date: 29 March 1898
• Citation: 46 S.W. 151,144 Mo. 653
• Parties: In re KNAUP.
• Court: Missouri Supreme Court

46 S.W. 151

144 Mo. 653

In re KNAUP.

Supreme Court of Missouri.

March 29, 1898.

CONTEMPT — PROCEEDINGS SUPPLEMENTARY TO EXECUTION — PUNISHMENT.

1. Rev. St. 1889, § 4971, provides that, whenever an execution is returned unsatisfied, the judgment creditor may, within five years thereafter, be entitled to an order requiring the debtor to appear and undergo an examination as to his ability to satisfy the judgment, and the court may issue a writ of attachment, and punish the debtor for contempt if he fail or neglect to obey such order. Held, that a failure to comply with an order of the court directing a debtor to deliver the property after such an examination is not punishable by imprisonment.

2. Rev. St. 1889, § 5243, provides that, if it appear that any garnishee had, before his garnishment, executed to any defendant a negotiable note, which at the time of the garnishment was unpaid, the court may order the defendant to deliver the same into court, and may enforce the order by attachment of the body of the party to whom directed. Held, where a defendant disclosed his possession of negotiable bonds at proceedings supplementary to execution, and garnishment process was served on the maker of the bonds, and the defendant ordered to deliver the bonds to a receiver appointed for that purpose, that the defendant's refusal to deliver the bonds was contempt, and punishable by imprisonment, regardless of whether the court had the power to appoint a receiver.

3. Const. art. 2, § 16, provides "that imprisonment for debt shall not be allowed except for the nonpayment of fines and penalties imposed for violation of law." Held, that imprisonment of a judgment debtor for refusing to deliver property under an order of the court is not in violation of that section.

In banc. Application by Frederick Knaup for a writ of habeas corpus. Writ denied.

Silver & Brown, for petitioner. W. S. Pope, for respondent.

ROBINSON, J.

This is an application, on habeas corpus, for the discharge from imprisonment of the petitioner, Frederick Knaup, committed to the jail of Cole county for contempt in refusing to obey an order of the circuit court of that county requiring him to deliver to its receiver certain bonds in petitioner's possession. The facts giving rise to this proceeding have been summarized by counsel as follows: The Cole circuit court at its July term, 1897, rendered judgment on a promissory note, in the sum of $3,073.35, against the Standard Shoe Company and Frederick Knaup, co-defendants. An execution was on August 12th thereafter sued out by the judgment creditor, and against the defendants, returnable to the November term, 1897, of the circuit court; and the same was returned to said term unsatisfied, except as to the sum of $189.70, which was realized and applied as a credit on the execution. Afterwards, at the November term, 1897, of said court, the execution plaintiff caused the petitioner herein to be examined by the court, under Rev. St. 1889, § 4971 et seq., as to his ability and means to satisfy the judgment. The court on November 30, 1897, entered its finding on said examination, to the effect that the petitioner had in his possession, and on his person, "three bonds of Cole county, of the par value of five hundred dollars each, and five bonds of the Jefferson City Waterworks Company, of the par value of one thousand dollars each, and a note against the Standard Shoe Company; that all of said property ought to be applied to the payment of said judgment, until the same has been satisfied; and that said judgment is a prior lien on said property." Afterwards, on November 30, 1897, the execution plaintiff filed a motion in the circuit court requiring said Frederick Knaup to deliver the Jefferson City Waterworks bonds so found in his possession and upon his person into the court. This motion the court on the same day overruled. Afterwards, on said November 30, 1897, the execution plaintiff sued out an alias execution against the defendants; and subsequently, on the same day, the sheriff of Cole county returned the alias execution; his return reciting service of garnishment process on Fred H. Binder, president of the Jefferson City Waterworks Company. Thereafter, and on the same day, the execution plaintiff filed in the circuit court his supplemental petition, in which he set forth, in substance, the rendition of the judgment for $3,073.35 in his favor; the issuance of the original execution thereon, and its return unsatisfied, except as to the sum of $189.60; the issuance of the alias execution, and the service of the garnishment on the waterworks company; the examination of said Frederick Knaup under oath by the court, and its finding that he had in his possession and upon his person the bonds as recited by the court in its order, and that they were subject to the payment of plaintiff's judgment. Said petition further set forth that, unless Frederick Knaup should be restrained from so doing, he would negotiate said bonds, and place them beyond the process of the court; and it prayed for a temporary restraining order to prevent said Knaup from negotiating said bonds until the hearing of the garnishment proceedings, that the injunction be then made perpetual, and for the appointment of a receiver to take charge of the securities pending litigation. The court at this hearing entered its order directing the said Frederick Knaup, petitioner herein, to deliver the said Jefferson City Waterworks bonds into the hands of the receiver, and, on his refusal to obey said order, adjudged him guilty of contempt, and committed him to the jail of Cole county until he should yield obedience thereto. The said Knaup, having been taken into custody by the sheriff of Cole county, brings this habeas corpus proceeding to test the legality of the order.

In the brief filed herein with the court by the learned counsel for the petitioner a most interesting discussion, involving the consideration of questions about which the courts of our country are in much confusion, has been presented, such as the authority and power of courts of equity (independent of express statutory enactments conferring it) to compel a debtor, at the instance of a judgment creditor whose execution at law has proven unavailing, to turn over to the court, or a receiver appointed by the court, under the penalty of imprisonment, notes or other personal chattels in his possession, in order that they may be subjected to the satisfaction of the judgment against him; and, further, as to what is the proper limitation and restriction of a court of equity, when invoked as auxiliary to a court of law in the enforcement of its judgments, and other like kindred questions; also, the question as to what extent articles carried or worn about or upon the person of an execution debtor are to be held exempt from seizure on execution or attachment; also, an elaborate discussion on the constitutional declaration against imprisonment for debt, and the various statutory provisions enacted declaratory thereof. In the view we take of the facts that led up to, and resulted in, the order of imprisonment of the petitioner by the circuit court, from the force of which he now seeks by this writ his discharge, there will be no occasion to give to this opinion so wide a range of discussion as is suggested in the brief of petitioner.

While the petitioner was brought before the circuit court of Cole county on an order for his appearance and examination touching his means and ability to pay the judgment against himself, and in favor of one of his judgment creditors, under section 4971, Rev. St. 1889, and at that examination he was made to disclose the ownership and whereabouts of the waterworks bonds mentioned above, the order for his imprisonment was not predicated upon the...