Junior v. Junior

• Decision Date: 11 July 1935
• Docket Number: 33625
• Citation: 84 S.W.2d 909
• Parties: JUNIOR v. JUNIOR
• Court: Missouri Supreme Court

84 S.W.2d 909

JUNIOR v. JUNIOR

No. 33625

Supreme Court of Missouri, Second Division

July 11, 1935

Marion D. Waltner, of Independence, and Harry G. Waltner, Jr., of Kansas City, for appellant.

Alpha N. Brown, of Kansas City, for respondent.

OPINION

BOHLING, Commissioner.

This is an appeal from an order of the circuit court of Jackson county, Mo., refusing to revoke an order appointing a receiver.

The action is for equitable relief to enforce a judgment for the support and maintenance of a minor child. Plaintiff is the former wife of defendant and her bill alleges, in substance that upon service by publication, defendant being a nonresident of the state at the time, she secured a divorce on or about March 15, 1920; that the child was born during the marriage relation; that thereafter, upon supplemental petition, personal service being had upon defendant, judgment was rendered on or about April 1, 1931, in favor of plaintiff and against defendant for $ 45 per month for the support and maintenance of said minor child; that execution issued upon said judgment and was returned unsatisfied; that no part of said judgment has been paid; that defendant is an employee of the state of Missouri and his salary is not subject to garnishment, execution, or any process of court to enforce said judgment; that defendant, since said judgment for support and maintenance, has concealed and secreted and fraudulently transferred his said salary and the proceeds thereof and transferred other personal property to other parties for the fraudulent purpose of defeating the enforcement of said judgment and has threatened to continue to so do in the future; that plaintiff has no adequate remedy at law; and that in equity and good conscience the property and income of defendant should be sequestered and appropriated to the payment of said judgment. The prayer was for the appointment of a receiver to take charge of the property, income, and salary of defendant and the payment of the same to plaintiff to apply on said judgment, and for a restraining order, followed by a temporary and permanent injunction, enjoining defendant from indorsing any salary checks, warrants, or drafts received by him from the state of Missouri, or converting the same into cash except for the purpose of transferring the same to the receiver or paying the same to apply upon said judgment. Further proceedings were had in the cause resulting in the granting of a temporary injunction and the appointment of Donald e. Lyons as receiver. Defendant thereafter filed his motion to revoke the order appointing the receiver, alleging, among other things, that said plaintiff's petition fails to state facts sufficient to authorize the appointment of a receiver; that said order contravenes constitutional provisions prohibiting the deprivation of property without due process of law (section 1, Amend. 14, U. S. Const.; section 30, art. 2, Mo. Const.) and prohibiting imprisonment for debt (section 16, art. 2 Mo. Const.). The court refused to revoke said order.

It clearly appears from plaintiff's petition that the amount involved in this proceeding is less than $ 7,500 and inadequate to confer appellate jurisdiction in this court. Assuming, but not determining for reasons hereinafter appearing, that defendant's motion to vacate is before the court, the only possible grounds therein conferring jurisdiction here are that the appeal is from an order refusing to revoke the appointment of receiver (section 1018 R. S. 1929 [Mo. St. Ann. § 1018, p. 1286]) and that a constitutional question may be involved (section 12, art. 6, and section 5 of the Amendment of 1884 of article 6, Mo. Const.). The provision in section 1018, R. S. 1929 (Mo. St. Ann. § 1018, p. 1286), providing that this court shall summarily hear and determine all appeals from orders refusing to revoke, modify, or change an interlocutory order appointing a receiver, and for that purpose shall, on motion, advance the same on its docket does not appear to be jurisdictional. As stated in Stipp v. Bailey, 331 Mo. 374, 376(1), 53 S.W.2d 872(1) (a case involving an appeal from an order overruling a motion to revoke an order appointing a receiver): 'An appeal to the court having appellate jurisdiction is allowed by said statute [section 1018, supra] from an order refusing to revoke an order...