Mayne v. St. Louis Union Trust Co.

• Decision Date: 24 April 1933
• Docket Number: No. 9634.,9634.
• Citation: 64 F.2d 843
• Parties: MAYNE et al. v. ST. LOUIS UNION TRUST CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F.2d 843 (1933)

MAYNE et al. v. ST. LOUIS UNION TRUST CO. et al.

No. 9634.

Circuit Court of Appeals, Eighth Circuit.

April 24, 1933.

R. E. La Driere, of St. Louis, Mo. (Samuel W. Fordyce and Thomas W. White, both of St. Louis, Mo., Peter, Lee, Tabb, Krieger & Heyburn and Furlong & Woodbury, all of Louisville, Ky., and Fordyce, White, Mayne & Williams, of St. Louis, Mo., on the brief), for appellants.

Harold R. Small, of St. Louis, Mo. (Boyle & Priest, G. T. Priest, R. E. Moloney, Carter, Jones & Turney, Edward H. Miller, S. L. Swarts, Thomas Reyburn, Louis Kawin, Rhodes E. Cave, Robert N. Hawes, and Bryan, Williams, Cave & McPheeters, all of St. Louis, Mo., on the brief), for appellees.

Before STONE, GARDNER, and SANBORN, Circuit Judges.

GARDNER, Circuit Judge.

Katie L. Van Cleave, a resident of St. Louis, Mo., died about June 1, 1928, leaving a will, by the provisions of which her son, Giles V. Van Cleave, was named as a residuary legatee to the extent of one-third of the residuary estate. The distributive portion of the estate to which Giles B. Van Cleave became entitled is valued at about $20,000, and is still held undistributed in the hands of the executors of the estate of Katie L. Van Cleave.

Giles B. Van Cleave resided in Louisville, Ky., where he departed this life on July 28, 1929. On or about December 10, 1927, Robert W. Bingham recovered a judgment against him in the state of Kentucky for $8,333.34, and on or about November 5, 1927, the First National Bank of Louisville recovered a judgment against him in Kentucky, for $12,000. The Bingham judgment was on July 9, 1928, assigned to appellant Walter R. Mayne, and on July 20, 1928, the judgment of the First National Bank of Louisville was assigned to the appellant Frank E. Williams. These assignments were made to appellants on the agreement that the assignees would pay to the assignors all sums of money collected by the assignees on account of said judgments in excess of a certain percentage of the amount due on said judgments. The appellants were, and now are, attorneys at law, duly licensed to practice in the courts of record of the state of Missouri.

On July 30, 1928, Giles B. Van Cleave, for a valuable consideration, executed a written assignment of his share of the residuary estate of his mother to the extent of $2,500, to the appellee Lincoln Bank & Trust Company; a copy of this assignment being received by the executors on July 31, 1928. On July 31, 1928, Giles B. Van Cleave executed a written assignment of his share of his mother's estate, to the extent of $1,252.85, to the appellee James W. Kirwan; a copy of this assignment being furnished to the executors on August 1, 1928. On August 1, 1928, Giles B. Van Cleave executed a written assignment of his share of his mother's estate, to the extent of $5,000, to the appellee Arthur E. Hopkins; a copy of this assignment being furnished to the executors on August 4, 1928. On November 8, 1928, Giles B. Van Cleave executed a written assignment of his share of his mother's estate, to the extent of $8,000, to the appellee National Bank of Kentucky; a copy of this assignment being furnished to the executors on November 30, 1928. Each of these assignments purported to give and grant to the assignee therein named a first lien on the distributive share of said Giles B. Van Cleave in the estate of Katie L. Van Cleave, and each assignment directed the executors to pay over, transfer, convey, and distribute to the assignee therein named, "the first money or other property distributable to Giles B. Van Cleave out of the estate of Katie L. Van Cleave."

On March 28, 1928, the Commissioner of Internal Revenue assessed federal income taxes for the year 1924 against Giles B. Van Cleave, in the sum of $3,311.84, and on May 4, 1928, he caused to be filed, pursuant to the statutory provision, a notice of tax lien in the county court of Jefferson county, Ky., the residence of Giles B. Van Cleave. On May 4, 1928, the Commissioner caused to be filed a similar notice in the United States District Court at Louisville, Ky. On October 25, 1928, a similar notice was filed in the United States District Court at St. Louis, Mo., and on the same date a similar notice was filed in the office of the recorder of deeds for the city of St. Louis, Mo. On October 30, 1928, a similar notice was filed in the office of the recorder of deeds of the county of St. Louis, Mo., and on or about February 21, 1929, the collector of internal revenue at St. Louis notified the executors that he had filed such notice of tax lien for $4,000 in the United States District Court at St. Louis, and in the office of the recorder of deeds of the city of St. Louis on the dates above mentioned.

By the decree entered in the lower court, the validity of all these claims was determined and their priorities fixed in the following order: (1) The claim of the Lincoln Bank & Trust Company; (2) the claim of James W. Kirwan; (3) the claim of Arthur E. Hopkins; (4) the tax claim of the United States; (5) the claim of the receiver of the National Bank of Kentucky; and (6) the claim of Walter R. Mayne and Frank E. Williams, the appellants herein. The decree provides that the distributive share of Giles B. Van Cleave should be distributed pursuant to orders of the probate court of the city of St. Louis, made in conformity with the lower court's decree.

There are not, as will be observed, sufficient funds in the distributive share of Giles B. Van Cleave to pay all of these claims in full, and hence the matter of priority of right is of controlling importance.

In July, 1928, and prior to the dates on which either of the appellees acquired his claim against the distributive share of Giles B. Van Cleave, each of the appellants instituted a suit in equity in the circuit court of the city of St. Louis, Mo., against the executors under the will of Katie L. Van Cleave and Giles B. Van Cleave, in which suits they sought to establish an equitable lien or garnishment to the amount of their judgments against the distributive share of Giles B. Van Cleave. These suits have not been tried, but are still pending. In the suit brought by Walter R. Mayne service was had on the executors on the 25th and 26th of July, 1928, and in the suit brought by Frank E. Williams service was had on these executors on July 27th and 30th; but in neither of these suits was service secured upon Giles B. Van Cleave, and he had no knowledge of the pendency of them when he executed the assignments to the various appellees herein, nor has he made any appearance in either of said suits. It is the contention of the appellants that the filing of these suits and the service of process upon the executors was in the nature of an equitable garnishment which created a lien on the funds in the hands of the executors, and hence they were entitled to priorities over the other claimants.

Section 1398 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. § 1398), provides in part as follows: "No sheriff, constable or other officer charged with the collection of money shall, prior to the return day of an execution or other process upon which the same may be made, be liable to be summoned as garnishee; nor shall * * * any administrator or executor of an estate, prior to an order of distribution, or for payment of legacies, or the allowance of a demand found to be due by his estate, be liable to be summoned as garnishee," etc.

At the time appellants filed their suits no order of distribution had been entered. There was no process of any kind served upon the executors, except the summons. They were not enjoined from making payment, and, until an order of distribution had been entered, the distributive share of the estate was not presently due. Appellants contend that the filing of these suits created a lis pendens, and that, as the appellees acquired their rights subsequent to such date, they were subject to the asserted rights of the appellants. By these suits personal judgments were sought against Giles B. Van Cleave and his equitable estate was sought to be reached. The executors held the legal title. Giles B. Van Cleave was joined as a party defendant, but he was not served, either personally or by publication, and of course was not enjoined from making disposition of his distributive share in his mother's estate. As the owners of foreign judgments, appellants had no lien upon this interest of Van Cleave in his mother's estate, but the very object of the suits was not the enforcement of a lien already secured, but the establishment of a lien upon personal property. In such a proceeding the court must have jurisdiction both of the person and the subject-matter before a lis pendens or an equitable garnishment could result. Lackland v. Smith, 5 Mo. App. 153; Troll v. St. Louis, 257 Mo....