In re Koehler

• Decision Date: 06 May 1913
• Parties: In re FRANK G. KOEHLER
• Court: Missouri Court of Appeals

156 S.W. 982

174 Mo.App. 297

In re FRANK G. KOEHLER

Court of Appeals of Missouri, St. Louis

May 6, 1913

Habeas Corpus. Original Proceeding.

WRIT AWARDED.

William Hilkerbaumer for petitioner.

(1) The affidavits filed by plaintiff praying for an examination of the judgment debtor are insufficient to support the order of March 10, 1913, because they do not state facts sufficient to entitle plaintiff to such order. They state that plaintiff "is informed and believes and has reasonable ground to believe that defendant has property subject to execution." This is not a compliance with the statutes which requires that it must appear to the court that there is reasonable ground to believe that the judgment debtor has property. The plaintiff's belief on the subject, or whether he has reasonable grounds, is immaterial and cannot justify the order. The affidavits should state sufficient facts from which the court can find that there is reasonable ground to believe that the judgment debtor has property. R S. 1909, sec. 2249; Ackerman v. Green, 201 Mo. 231; 107 Mo.App. 349. (2) The circuit court had no power under the statute to issue an attachment for this petitioner, and has no power to punish him for contempt for failure to appear for the reason that the statute in express terms limits the power of the court to attaching and punishing the judgment debtor. R. S. 1909, sec. 2249; Ackerman v. Green, 201 Mo 244, citing Schroerer v. Christophel, 64 Mo.App. 83 and Baker v. Railroad, 36 Mo. 545; 36 Cyc. 1172 1188. (3) The statute has no application to corporations. This for the following reasons: (a) It is apparent from a reading of sections 2248, et seq., that a corporation was not in the legislative mind when the statute was enacted. (b) There are other statutory remedies for the relief of creditors of corporations, particularly where, as here, unpaid stock liability is sought to be reached. See Secs. 3004-5, R. S. 1909, providing for execution against stockholders and securing the necessary information for such proceeding. (c) Only the judgment debtor can be examined and the examination must be under the oath of the judgment debtor. A corporation cannot take an oath. (d) The examination of this petitioner would not be a compliance with the statute, as it would not be an examination of the judgment debtor under the oath of the judgment debtor, but would be an examination under the oath of petitioner. R. S. 1909, secs. 2248 to 2253, 3004-5; Ackerman v. Green, 201 Mo. 231; 36 Cyc. Law & Proc., pp. 1172, 1188; Schroerer v. Christophel, 64 Mo.App. 83; Fiedler v. Const. Co., 162 Mo.App. 540; N.Y. Civil Code of Proc., secs. 2463, 1784, 1809-12; Levy v. Piano Co., 39 N.Y.S. 409; Stephens v. Page, 24 N.Y.S. 698; 10 Cyc. 1143.

Fordyce, Holliday & White and Fred Armstrong, Jr., for Albert S. Baker.

(1) Sec. 2248, R. S. 1909, provides for the examination of "any judgment debtor" under certain circumstances (the existence of which in the present case is not denied) provided section 2249 has been complied with. Sec. 2249 provides that before an order for such examination shall issue it must be "made to appear to the court, or judge or justice by affidavit or other evidence satisfactory to the court, or judge or justice that there is reasonable ground to believe that such judgment debtor has property subject to execution." (a) The verified petition for examination in the present cause is alone sufficient affidavit to justify the issuance of such an order. Ackerman v. Green, 201 Mo. 231. (b) The acts of courts of record are presumptively valid and if the verified petition for examination is not alone sufficient, it will be presumed in the absence of proof to the contrary that there was "other evidence satisfactory to the court" to justify the issuance of the order. (c) Not only are the acts of courts of record in general presumptively valid, but in this instance petitioner is held prisoner under a writ valid on its face, and he must affirmatively prove its invalidity, if it is invalid. Sec. 2474, R. S. 1909; Ex parte Bowler, 16 Mo.App. 14; Ex parte Krieger, 7 Mo.App. 367; In the matter of Clark, 126 Mo.App. 401; In re McBride, 158 Mo.App. 452. (2) Sec. 2248 covers the examination of a corporation through its officers. Sec. 8054, R. S. 1909; Secs. 3003, 3014, 3016; 17 Cyc. 1411, and cases cited; 21 Cent. Dig. sec. 1106ff; 8 Dec. Dig., sec. 372ff; Bates v. International Co., 84 F. 518; Wallace v. Sawyer, 54 Ind. 501; Hammond v. Hudson River, etc., 11 How. Pr. 29; Curtois v. Harrison, 12 How. Pr. 359; Tompkins v. Floyd, 19 Ind. 197; Steel v. Trading Corporation, 6 B. C. 158; Hamilton v. Stewiacke, etc. Co., 30 N. S. 92; Logan v. McCall Pub. Co., 140 N.Y. 447; Bank v. Harrison, 57 Mo. 503; Shockley v. Fisher, 75 Mo. 498. (3) If section 2248 does cover the examination of a corporation the court can enforce such examination by appropriate common law remedy if the remedy is not provided in the statute. Cummings v. Winn, 89 Mo. 51; Householder v. Kansas City, 83 Mo. 488; 1 Cyc. 700; 1 Dec. Dig. 279; 1 Cent. Dig. 1261; Hickman v. Kansas City, 120 Mo. 110. (4) Frank G. Koehler personally has no right to object to the examination any more than a witness has a right to object to examination. Ackerman v. Green, 201 Mo. 241.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

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 $ 4983.12 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 ...