McElvain v. McElvain

• Citation: 20 S.W.2d 912
• Decision Date: 23 September 1929
• Docket Number: No. 4629.,4629.
• Parties: McELVAIN v. McELVAIN et al.
• Court: Court of Appeal of Missouri (US)

20 S.W.2d 912

McELVAIN v. McELVAIN et al.

No. 4629.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Rehearing Denied October 30, 1929.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by Lee McElvain against C. T. McElvain and others. Judgment for the plaintiff, and defendants appeal. Affirmed.

Von Mayes, of Caruthersville, for appellants.

C. G. Shepard and Ward & Reeves, all of Caruthersville, for respondent.

BAILEY, J.

This is an action in the nature of an equitable garnishment by which plaintiff seeks to subject certain funds in the hands of a trustee to the payment of a certain judgment obtained by plaintiff against defendant Clyde T. McElvain for maintenance of their two minor children.

This suit is the outgrowth of rather prolonged litigation commencing with a suit for divorce which resulted in plaintiff securing a decree severing the bonds of matrimony between her and the said Clyde T. McElvain, in which plaintiff was given the care and custody of said children. No provision was then made for their maintenance. This decree was rendered in August, 1924. Thereafter, the father of defendant Clyde T. McElvain died, leaving a will by the terms of which the Citizens' Trust Company was made trustee of a fund out of which it was required to pay Clyde T. McElvain $250 quarterly from certain personal estate and also one-fourth the rents collected from certain real estate. Prior to that time defendant Clyde T. McElvain had no property or income. Plaintiff then filed a motion in August, 1925, to modify the original divorce decree so as to require defendant to help support and maintain the children. The court made an order attempting to sequester funds in the hands of the trustee which resulted in a prohibition proceeding in this court. See State ex rel. McElvain v. Riley (Mo. App.) 276 S. W. 881. The disposition of the prohibition proceedings is of no particular importance in the present controversy. Thereafter a hearing was had on the motion to modify the decree, which resulted in a judgment modifying the decree by granting to plaintiff, among other things, the sum of $40 per month for the support and maintenance of the children. An appeal from this judgment was taken by defendant to this court, and the judgment was affirmed as to the monthly allowance, but plaintiff's right to recover was limited so that the $40 per month should begin on the day the judgment modifying the decree was entered, instead of on the date the motion to modify was filed. McElvain v. McElvain, 221 Mo. App. 135, 296 S. W. 460.

The circuit court of Pemiscot county, pursuant to the mandate of this court, entered its decree, awarding plaintiff $40 per month as maintenance for said minors, the allowance commencing on the 23d day of April, 1927. Thereafter, plaintiff had an execution issued and served on defendant Citizens' Trust Company for the purpose of subjecting any funds in its hands belonging to Clyde T. McElvain to her judgment. Upon the return of said execution unsatisfied, plaintiff filed interrogatories to be answered by said Citizens' Trust Company. The latter filed an answer denying having any funds in its possession belonging to Clyde T. McElvain, whereupon plaintiff filed a denial to the answer, and upon a hearing the circuit court sustained the garnishee. On the 28th day of July, 1927, plaintiff instituted the present suit for the purpose of subjecting the funds in the hands of the trustee under the will, aforesaid, to the payment of plaintiff's judgment. In this action, plaintiff made the Citizens' Trust Company, as trustee under said will, and C. T. McElvain and his mother, Margaret Ann McElvain, parties defendant. On plaintiff's motion the circuit court of Pemiscot made an order impounding $1,000 of the funds held by it as trustee for defendant C. T. McElvain. This suit was thereafter transferred, on change of venue, to the Scott county circuit court, where it was tried at the March term, 1928. Defendant Margaret Ann McElvain, by her answer, laid claim to the funds by virtue of an assignment hereinafter set out. At the August term, 1928, the circuit court rendered its decree finding and judging the assignment made by Clyde T. McElvain to his mother, Margaret McElvain, defendant, was fraudulent except as to the amount due said Margaret Ann McElvain on the date of the assignment; that said amount had been paid her by the trustee and that she was not entitled to receive any more of the funds due to be paid defendant, Clyde T. McElvain, under the terms of his father's will; and that the sum of $1,000, held under and by virtue of the order of the Pemiscot circuit court, made in this cause, was subject to the judgment obtained by plaintiff. The decree then directed defendant Citizens' Trust Company to pay plaintiff $1,000 in its hands. Defendants have appealed.

Defendants raise the point that the decree is not supported by the evidence. In this connection it is asserted that plaintiff failed to prove the assignment in question was fraudulent. Since this is an equitable proceeding, it is our duty to consider the case de novo, and we are not bound by the trial court's finding on the facts.

At the time the original motion to modify the decree was filed in August, 1925, defendant Clyde T. McElvain was not at his home in Caruthersville and service was had by serving the copy of the motion and summons on defendant Margaret Ann McElvain, his mother, at his usual place of abode. The court made the order on defendant Citizens' Trust Company requiring it to make no further payments to Clyde T. McElvain, on August 4, 1925. Thereafter, on August 11, 1925, a motion was filed on behalf of defendant Clyde T. McElvain to revoke this order, although he was at that time not in Caruthersville. The attorney for Margaret Ann McElvain filed the motion for him. In September, thereafter, Margaret Ann McElvain made a trip to Memphis, Tenn., where her son, the defendant Clyde, then was, and procured from him an assignment of his interest in his father's estate as follows:

"Assignment. I, Clyde T. McElvain, hereby assign, sell and transfer to my mother, Margaret McElvain, in consideration of the cancellation of all debts that I now owe her for money advanced and loaned to me, all my right, title and interest in and to the legacy left me by my father, J. M. McElvain, deceased, according to the provisions of the last will and testament of him, J. M. McElvain, deceased, that may now be or that may hereafter become due from the said Citizens Trust Company, a corporation, of Caruthersville, Missouri, trustee of said will, to me under the provisions of said will, to be her property absolute forever.

"Witness my hand this the 26th day of September, 1925. Made and signed in duplicate.

                               "C. T. McElvain, Assignor
                  "Witness: L. B. Curtis."
                

Thereafter, defendant Margaret Ann McElvain moved the court to be made a party to the then pending proceedings, which motion was sustained over plaintiff's objection. She then filed an answer December 7, 1925, setting up a claim to the legacy by virtue of the above assignment. It is agreed that at the time this court rendered its decision in the case of McElvain v. McElvain, holding the circuit court could not impound the funds in the hands of the trustee pending the outcome of the motion to modify, there had accumulated in the hands of the trustee, the Citizens' Trust Company, the sum of $1,080 due to be paid to Clyde T. McElvain under the terms of his father's will. This amount was immediately paid to defendant Margaret Ann McElvain upon a check signed by her and her son Clyde. The Citizens' Trust Company required a bond for its protection before paying the money.

Defendant Margaret Ann McElvain testified both in this trial and the former trial that her son was indebted to her in the sum of more than $2,000 at the time she took the assignment. If that be true, she is still a creditor of Clyde T. McElvain to the extent of at least $920, being the balance...