Mathias v. Arnold
| Decision Date | 15 July 1915 |
| Citation | 178 S.W. 264,191 Mo.App. 352 |
| Parties | LILLIAN A. MATHIAS, Appellant, v. JAMES H. ARNOLD et al., Respondents |
| Court | Missouri Court of Appeals |
Original Opinion of May 4 and July 15, 1915, Reported at: 191 Mo.App 352. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
May 4, 1915;
Motion for rehearing overruled.
OPINION
ON MOTION FOR REHEARING.
Respondents, in their motion for a rehearing, insist that the foregoing opinion is in conflict with that of the Kansas City Court of Appeals in Taylor v. Swearingen, supra. It is said that the opinion in that case shows merely that it did not appear "in any of the proceedings in the case wherein the execution was issued" that the judgment debtor and the plaintiff therein were husband and wife. It is true that the opinion so states, but thereafter the court says: "So far as the record shows the two are strangers." From the latter remark, it is fair to conclude that the record before the appellate court in that case, and upon which it was being tried, nowhere showed the fact that the plaintiff was the wife of defendant in the execution. At any rate the opinion throughout proceeds as though the parties were strangers, and the case is disposed of on that theory, following Payne v. Savings Trust Company, supra, where the parties to the record were not husband and wife.
In the instant case the record before us does not show that in any of the proceedings in the case wherein the execution was issued it appeared that these parties were husband and wife. Such fact would not be expected to so appear. The debt is said to be the sole debt of the husband. He was sued therefor and a judgment obtained against him. Execution was levied upon the property described in the petition herein, as being his property, or upon the theory that he had an interest therein subject to execution. The fact that the true owner of the property was his wife would not be expected to appear anywhere in that proceeding. This record, however, does show and the demurrer admits, that the parties are husband and wife, and that the property is the sole and separate property of the wife, this plaintiff; that it has been seized under execution for the husband's debt, and that a sale thereof is threatened to satisfy such execution. And the question, squarely presented, is whether or not, in...
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