McElvain v. McElvain

• Decision Date: 09 June 1927
• Citation: 296 S.W. 460,221 Mo.App. 135
• Parties: LEE McELVAIN, RESPONDENT, v. CLYDE McELVAIN, ET AL., APPELLANTS. [*]
• Court: Missouri Court of Appeals

296 S.W. 460

221 Mo.App. 135

LEE McELVAIN, RESPONDENT, v. CLYDE McELVAIN, ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri

June 9, 1927

Appeal from the Circuit Court of Pemiscot County.--Hon. H. C. Riley Judge.

JUDGMENT MODIFIED IN PART AND AS MODIFIED AFFIRMED. REVERSED IN PART.

Judgment reversed.

Von Mayes and Gossom & Gossom for appellants.

(1) A suit for divorce is an action at law. Laumeier v Laumeier, 271 S.W. 488; Chapman v. Chapman, 269 Mo. 663. The power to grant a divorce is statutory. 19 Corpus Juris, sec. 28, p. 23; sec. 30, p. 24. (2) A judgment for maintenance is a judgment at law, and the amount may be assessed by a jury. Remers v. Wolf's Estate, 226 S.W. 292; Kinsolving v. Kinsolving, 194 S.W. 530. (3) Where a judgment at law cannot be enforced by execution it may be enforced by a creditor's suit, which is in the nature of an equitable garnishment. Lackland v Garesche, 56 Mo. 267; 15 Corpus Juris, sec. 2, p. 1382; 28 Corpus Juris, sec. 27, p. 33; 26 R. C. L., sec. 120, p. 1270. (4) To maintain a creditor's suit, or equitable garnishment, the plaintiff must show a valid judgment, unless there are equitable reasons for maintaining the suit before obtaining a judgment. Pendleton v. Perkins, 49 Mo. 568; Heaton v. Dickson, 153 Mo.App. 312. (5) Funds that may come into the hands of a trustee in the future by way of rents and profits are assignable by the legatee. 39 Cyc. 237 (11); Hauser v. Richardson, 90 Mo.App. 134; 26 R. C. L., sec. 112, p. 1264. (6) In order for a plaintiff to reach by way of garnishment trust funds the defendant must be both legally and equitably entitled thereto. Stewart Land Co. v. Romig, 218 S.W. 892; 12 R. C. L., sec. 90, p. 848; also sec. 17, p. 786. (7) The legal presumption is that a trust is not a spend-thrift trust. A spend-thrift trust is determined by the provisions of the will, and unless the will expressly makes limitation or the intent is made clear by the language against alienation and claims of creditors the trust created is not a spend-thrift trust. 26 R. C. L., sec. 117, p. 1268; Heaton v. Dickson, 153 Mo.App. 112; Bank v. Burns, 199 S.W. 285-6; Gordon v. Tate, 284 S.W. 497. (8) Where a settlement is made between parents as to the future support of their children and accepted by the mother as satisfactory the father is no longer liable in an action by the mother for the support of the children. LaRue v. Kempf, 186 Mo.App. 57. However, the father would continue to be liable to others for the support of his children. Johnson v. Onstead, 74 Mich. 437; 19 Corpus Juris, sec. 814, pp. 354-5; LaRue v. Kempf, supra. (9) Funds held by an executor or administrator are not subject to either legal or equitable garnishment. 12 R. C. L., sec. 45, p. 814; Sec. 1848, R. S. 1919; Bank v. Burns, 199 S.W. 285. (10) There is a legal distinction between an executor and a trustee under a will. They are separate and distinct offices. 39 Cyc. (4), pp. 249-250; Williams v. Hund, 302 Mo. 451. (11) A proceeding to impound funds cannot be maintained unless the party having such funds is made a party to the action. Cooksey v. Cooksey, 200 S.W. 103. (12) The opinion of this court upon the motion for rehearing in the case of State ex rel., McElvain v. Riley, Circuit Judge, 276 S.W. 881, is in conflict with the case of Aetna Ins. Co. v. Security Printing Co., 196 S.W. 93, and various decisions of the appellate courts and Supreme Court. Sec. 1967, R. S. 1919; Laumeier v. Laumeier, 271 S.W. 488; State v. Porterfield, 283 S.W. 59. (13) No term bill of exception was required to preserve the point raised in defendant's motion to dissolve the temporary injunction for want of jurisdiction. Orchard v. Bank, 121 Mo.App. 338; Hannibal v. Mahoney, 42 Mo. 467; Union Brewing Company v. Ehlhardt, 139 Mo.App. 129; Drainage District v. Richardson, 227 Mo. 252; State v. Riley, 276 S.W. 882. (14) The pleading of the plaintiff labeled "Supplemental Motion" is not a motion to modify a judgment, but is more in the nature of a creditor's suit or equitable garnishment. Heaton v. Dickson, 153 Mo.App. 312; 15 Corpus Juris, sec. 2, p. 1382; 28 Corpus Juris, sec. 7, p. 33; Auer v. Auer, 193 S.W. 926. There is no reference in the pleading or the prayer to modifying the judgment. The petition is as much a part of the record as the judgment and the judgment or decree must be within the scope of the pleading. Orchard v. Bank, 121 Mo.App. 338; Padock v. Lance, 94 Mo. 283; Needles v. Ford, 167 Mo. 495; Schneider v. Patton, 175 Mo. 684; St. Louis v. Wright Co., 210 Mo. 491; Schnieder v. Meyer, 56 Mo. 475. The prayer of a petition may be considered in determining the nature of the action. Rush v. Brown, 101 Mo. 586; 1 Corpus Juris, sec. 174, p. 1044. (15) The proof failing to show plaintiff entitled to equitable relief no legal relief can be granted and plaintiff's bill should be dismissed. Fowels v. Bentley, 135 Mo.App. 417; 21 Corpus Juris, sec. 23, p. 142; Linden v. Hornstain, 221 F. 178. (16) Plaintiff can only recover by a motion to modify the decree for future support of her children. This motion is strictly a motion at law and relates to the future only from the time of the entry of the order of the court modifying the decree. Laumeier v. Laumeier, 271 S.W. 481; 19 Corpus Juris, sec. 819, p. 359; sec. 815, l. c. 356; Sec. 1806, R. S. 1919; Kell v. Kell, 179 Iowa 647, 161 N.W. 634. (17) In equity a party in interest may be made defendant on his or her own application. Wright v. Cobb, 229 S.W. 171; 21 Corpus Juris, sec. 338 to 344 inclusive, pp. 341-4; Wegenka v. St. Joseph, 212 S.W. 71. (18) An ex post facto order of the court upon proper notice putting in force a void restraining order previously made by the court does not relate back so as to render invalid proceedings in the interim. Young v. Davis, 1 T. B. Mon. (Ky.) 152; 32 Corpus Juris, sec. 736, p. 431.

Ward & Reeves and Shepard & Hawkins for respondent.

(1) Section 1806 of our divorce law pertaining to alimony and maintenance, as well as other sections of the statute on the same subject, must be liberally and equitably construed and when so construed the circuit court has full and complete jurisdiction to protect and maintain the interest of minor children of divorced parents, and when it becomes necessary the court has the power to sequestrate property belonging to the father in order to protect the innocent minor children. Robinson v. Robinson, 268 Mo. 703; In re Gladys Morgan, 117 Mo. 249; Hughes v. Hughes (Tex.), 259 S.W. 180. (2) In proceedings of this nature the circuit court has jurisdiction to issue temporary writ of injunction, or restraining order when it becomes necessary for such order to be issued for the protection of the minor children, and the parties being before the court, matters pertaining to an injunction can be litigated in such proceeding. State ex rel. Shoemaker v. Hall, 257 S.W. 1047. (3) If it becomes necessary in order to protect the interest of the minors the circuit court has the jurisdiction and authority to appoint a receiver to take charge of the father's property and administer it so as to let the proceeds thereof be applied in meeting the needs of his infant children. 3 Bouvier's Law Dictionary, page 2828; Bemus v. Bemus (Tex.), 133 S.W. 503; Lewis v. Lewis (Iowa), 197 N.W. 907; Hess v. Hess (Sup. of Oregon), 239 p. 124. (4) Supplemental motion or petition in divorce proceeding as is the proceeding before the court at this time is but a continuation of the original action, the trial court retains jurisdiction of the case until the children reach their majority, and any judgment, order or decree, the court had jurisdiction to make in the trial of the original case pertaining to care, custody and maintenance of the children can be made on supplemental motion. Barnhart v. Barnhart (Mo. App.), 253 S.W. 56; Angus McKay v. Superior Court for the City and County of San Francisco, 40 L.R.A. 585. (5) While there has been some conflict in the Missouri decisions as to whether or not the mother can recover from the father for money expended in caring for the minor children prior to the date of filing the supplemental motion or petition, yet, we think, the later cases have settled that proposition and makes it necessary for the wife or mother to bring an independent suit to recover money expended by her in maintaining the minors prior to the date of filing the supplemental petition or motion, but she is entitled to recover on her supplemental motion from and after the date of its filing. 19 C. J. 353; Auer v. Auer (Mo. App.), 193 S.W. 926. (6) Appellant says respondent's proceeding is in the nature of a creditor's bill, therefore, the property of the defendant could not be sequestered until after judgment was rendered for maintenance, execution issued, and nulla bona return made by the sheriff. Respondent's action is not in the nature of a creditor's bill and the rule of law announced by appellant does not apply in this proceeding, and even did that rule of law apply it has many exceptions as will be seen by consulting the following cases. Pendleton v. Perkins et al., 49 Mo. 565; Webb & Company v. Lumber Company, 68 Mo.App. 546; Burnham, Munger & Company v. Smith, 82 Mo.App. 35. (7) Whenever the intent of the testator to impose the necessary restrictions to create a spend-thrift trust exists, it is the duty of the court to respect the limitations, regardless of the habits of the beneficiary. In short, to create a spend-thrift trust, it is no longer necessary that the beneficiary be a spend-thrift. Jones v. Harrison, 7 F.2d 461; Higby v. Brockenbrough et al., (Mo. Sup.) 191 S.W. 994; Kessner v. Phillips, 189 Mo. 515; Partridge v. Cavender, 96 Mo. 452.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

Plaintiff was granted a decree of...