In re Ziegenhein

• Decision Date: 31 July 1916
• Docket Number: No. 15314.,15314.
• Citation: 187 S.W. 893
• Parties: In re ZIEGENHEIN.
• Court: Missouri Court of Appeals

187 S.W. 893

In re ZIEGENHEIN.

No. 15314.

St. Louis Court of Appeals. Missouri.

July 31, 1916.

Original petition for habeas corpus by Fred W. Ziegenhein. Petitioner ordered discharged.

Petition under Habeas Corpus Act by Frederick W. Ziegenhein for release from imprisonment, he having been committed to jail for contempt of court, as it is alleged. The petition for the writ sets out that one Katherine Nietert and others commenced suit against Fred W. Ziegenhein and others in the circuit court of the city of St. Louis, by the petition in which it is alleged, in substance, that one of the defendants Mangson, Weiss, Harding & Dowdall Adjustment Company, hereafter referred to as the Adjustment Company, is a corporation organized and existing under and by virtue of the laws of this state; that the plaintiffs Katherine Nietert, Anna L. Walker, Emma Z. Jostes and Clara De Haan, and the defendants Fred W. Ziegenhein (petitioner here), Henry Ziegenhein and Adela Blank are brothers and sister and are the children of Henry Ziegenhein, deceased, who died March 17th, 1910, leaving a will, which was duly admitted to probate; that letters of administration with the will annexed were issued, the estate duly administered and settled, all debts paid, and the administrator discharged on June 26th, 1912; that plaintiffs and the individual defendants are the only heirs at law of Henry Ziegenhein and sole distributees under his will of his estate; that as such heirs and distributees plaintiffs and the individual defendants were jointly the owners of certain improved real estate situated in the county of St. Clair in the state of Illinois, and that the improvements on this real estate were destroyed by fire; that at the time of the occurrence of the fire these improvements were insured by various insurance companies, the policies being payable "to the estate of Henry Ziegenhein;" that plaintiffs and the individual defendants being jointly interested in the property so destroyed and in the proceeds of the insurance policies, employed the defendant Adjustment Company as their agent to adjust the loss with the insurance companies and that the Adjustment Company, acting under the authority of plaintiffs and the individual defendants, and with their consent, made a settlement with the insurance companies and adjusted the loss on or about September 3rd, 1915; that the Adjustment Company received from the various insurance companies 18 certain drafts or checks, each of them payable "to the estate of Henry Ziegenhein." These several drafts are described. Several of them are drafts by insurance companies drawn on themselves, payable, some at Pittsburg, Pa., others at New York City. Others drawn on various banks and trust companies at Pittsburg, Pa.; one drawn on itself by an insurance company, payable by it at Albany, New York; another drawn by an insurance company, payable by it at Albany, New York; another drawn by an insurance company of London, England, on itself, payable by itself at Chicago, Ill.; others drawn on insurance companies and payable at Boston Mass. In brief, all of them are drawn either on the insurance companies themselves or on banks or trust companies, all payable at different points outside of the state of Missouri. They total $40,460.84. It is further averred in the petition in the principal case, that these drafts or checks, as they are called, are in possession of the defendant Adjustment Company in St. Louis and are jointly owned by plaintiffs and the individual defendants, each owning an undivided one-seventh interest as heirs of Henry Ziegenhein, deceased; that the Adjustment Company held these drafts as trustee for the use and benefit of plaintiffs and the individual defendants and has no interest therein and that they cannot be cashed or turned into money except upon the joint indorsement of plaintiffs and the individual defendants; that plaintiffs are willing and have offered to sign and indorse these drafts but that the individual defendants, although duly requested, have refused to indorse them for the purpose of turning the same into money for distribution between the parties entitled thereto, and it is averred that plaintiffs are entitled to have partition made of the drafts and proceeds arising therefrom according to the respective interests of the parties therein as before set out. Wherefore it is prayed that the defendant Adjustment Company be ordered to turn over possession of these drafts or checks to the clerk of the circuit court of the city of St. Louis to be indorsed by plaintiffs, and that the individual defendants, among them petitioner Fred W. Ziegenhein, be ordered to also indorse them; that the drafts or checks be turned into cash by the clerk of the court and the proceeds of the same be partitioned by the clerk among plaintiffs and the individual defendants according to their respective interests.

It is further averred in the petition for the writ of habeas corpus, that the cause was duly assigned to the Hon. George H. Shields, sitting as judge in Division 13 of the circuit court of the city of St. Louis, and that thereafter the cause was heard by the judge upon evidence adduced by the plaintiffs; that the cause being heard by the judge on the petition and the evidence produced by plaintiffs in support thereof, was taken under advisement by the court and that the court thereafter entered a decree against Fred W. Ziegenhein and the other individual defendants to this effect:

"That the said defendant Mangson, Weiss, Harding & Dowdall Adjustment Company is hereby ordered to turn over the possession of said drafts or checks to the clerk of this court, taking the receipt of the clerk for same, describing the same; that after said drafts or checks are indorsed by the plaintiffs in this action, and the receipts attached thereto are signed by plaintiffs, that the defendants Fred W. Ziegenhein, Henry Ziegenhein and Adela Blank, are hereby ordered by this court to indorse the same for the purpose of collection, and to sign the receipts attached thereto; that upon said drafts or checks being indorsed that the clerk of this court is hereby ordered to collect the proceeds thereof and divide the same among the plaintiffs and the defendants Fred W. Ziegenhein, Henry Ziegenhein and Adela Blank, share and share alike, each thereof receiving one-seventh (1/7) interest therein. It is further ordered that the defendants Fred W. Ziegenhein, Henry Ziegenhein and Adela Blank pay the costs of this proceeding, for which let execution issue." (Italics ours.)

This order appears to have been signed by the circuit judge.

It is further set out in the petition for the writ of habeas corpus that the petitioner, Fred W. Ziegenhein, on the ____ day of July, 1916, in open court and in the presence of said court, refused to indorse the drafts described in the petition and in the decree and upon said refusal and for no other reason whatsoever the circuit judge adjudged the petitioner Fred W. Ziegenhein guilty of contempt of court and issued an order committing him to the custody of the sheriff of the city of St. Louis. The order of commitment is set out in full and is entitled in the cause and in the name of the State of Missouri, is addressed to the sheriff of the city of St. Louis, and is as follows:

"Whereas in the above entitled cause the circuit court of the city of St. Louis, did on the 29th day of June, 1916, enter its decree, whereby it was ordered, adjudged and decreed as follows: `That the said defendant, Mangson, Weiss, Harding & Dowdall Adjustment Company should turn over the possession of certain drafts or checks held by it to the clerk of this court, taking the receipt of the clerk of same, describing the same,'" as before set out.

The commitment proceeds:

"That thereupon the plaintiffs in this suit should indorse the said drafts or checks and sign the receipts attached thereto; that thereupon the defendants Fred W. Ziegenhein, Henry Ziegenhein and Adela Blank should, likewise indorse said drafts or checks and sign the receipt attached thereto for the purpose of having said drafts or checks cashed by the clerk of this court and distributed among the parties to said cause as fully set forth in said decree of the court; and whereas said drafts or checks described as aforesaid have been turned over to the clerk of this court by the defendant Mangson. Weiss, Harding & Dowdall Adjustment Company; and whereas said drafts or checks together with receipts attached thereto have been indorsed by the plaintiffs herein; and whereas the said defendant Fred W. Ziegenhein has this day in open court in the immediate view and presence of the said court during its setting refused to obey the order of the court as set forth in said decree by refusing to sign and indorse the aforesaid drafts or checks together with receipts attached thereto, which said conduct on the part of the said defendant Fred W. Ziegenhein, constitutes wilful disobedience of the order of this court lawfully issued and made by it, and which said refusal and conduct on the part of...