McManus v. Burrows

• Decision Date: 05 April 1921
• Docket Number: No. 16926.,16926.
• Citation: 230 S.W. 129,206 Mo. App. 528
• Parties: McMANUS v. BURROWS et al. In re GERHART, Com'r.
• Court: Missouri Court of Appeals

230 S.W. 129

206 Mo. App. 528

McMANUS v. BURROWS et al. In re GERHART, Com'r.

No. 16926.

St. Louis Court of Appeals. Missouri.

April 5, 1921.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Suit for partition by Thomas Ward McManus against Camilla S. W. Burrows and others, wherein Frank H. Gerhart was appointed a commissioner, and after the commissioners made report the court confirmed the same by a decree which made allowance to the commissioners; each being allowed $5,000 in accordance with stipulation, plaintiff being liable for one-half of such allowances, an execution issued to collect from him the half of the allowances to the commissioners payable by him. A subsequent execution was issued by Commissioner Gerhart to collect from plaintiff interest on his half of such commissioner's allowance from the date of the decree to the date when the sum was paid, and from an order overruling plaintiff's motion to recall and quash execution, plaintiff appeals. Order reversed, and cause remanded, with directions.

See, also, 280 Mo. 327, 217 S. W. 512.

T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant.

Marion C. Early, of St. Louis, for respondents.

ALLEN, P. J.

This is an appeal from an order of the circuit court of the city of St. Louis overruling a motion to recall and quash an execution, being execution No. 52, February term, 1916, of that court, and said to be a pluries execution on execution No. 94, December term, 1908, of said court.

In the above-entitled cause, a partition suit, instituted by the appellant, McManus, in the circuit court of the city of St. Louis, the respondent Gerhart was appointed as one of three commissioners to make partition of the lands involved therein. The commissioners having made their report, the court, on June 23, 1908, confirmed the same by a decree which, inter alia, made allowances to said commissioners, each commissioner being allowed $5,000, in accordance with a stipulation fixing the amount of such allowances. Appellant, McManus, was liable for one-half of such allowances. Subsequently an execution was issued for the purpose of collecting from McManus the one-half of the respective allowances to the commissioners payable by him. From an order overruling his motion to quash that execution, McManus unsuccessfully appealed to the Supreme Court, 246 Mo. 438, 152 S. W. 3. Owing to the pendency of that appeal, said one-half of the allowances to the commissioners was not paid by McManus until December 24, 1912.

The execution here involved, which the circuit court refused to quash, is one caused to be issued by respondent Gerhart for the purpose of collecting from McManus $675 as interest upon the sum of $2,500 from June 23, 1908—the date of said decree, when such sum became payable by McManus as his onehalf of the allowance to Gerhart as commissioner—to December 24, 1912, when the same was paid, as aforesaid.

The precise question here involved was before this court in McManus v. Burrows, 191 Mo. App. 594, 177 S. W. 671, wherein the appeal was taken by McManus from an order refusing to quash an execution issued at the instance of Henry C. Grenner, one of said commissioners, for the purpose of collecting from McManus interest upon the one-half of Grenner's allowance as commissioner, payable by McManus, for the period mentioned. This court affirmed the action of the trial court in refusing to quash such execution. Further reference will be made to the opinion of this court on that appeal.

Appellant's motion to quash the execution involved in the present appeal contained grounds which were intended to raise constitutional questions, and because of this the appeal was allowed to the Supreme Court. It appears that the cause was docketed and heard in division No. 1 of the Supreme Court, and that an opinion was written therein by Judge Graves, concurred in by all of the members of that division excepting Judge James T. Blair, who dissented upon the ground that the Supreme Court was without jursidiction, and upon whose dissent the cause was transferred to the court en banc. The said opinion in division held that the cause had been properly appealed to that court, and that the order below should be reversed and the execution quashed. The court en banc, however, held that the Supreme Court had no jurisdiction of the appeal, and transferred the cause to this court.

The opinion of Judge Graves on the merits, which is directly contrary to the opinion of this court in McManus v. Burrows, supra, 191 Mo. App. 594, 177 S. W. 671, upon the identical question, is, of course, not an authoritative utterance of the Supreme Court, and hence not binding upon us, since it was filed in a cause in which that court, as was subsequently held en banc, had no jurisdiction. But we have that opinion before us, and, after mature consideration of the question presented by this appeal, we find ourselves in thorough accord with the views expressed therein by that learned jurist. We therefore adopt that opinion, including the statement of facts, made by a commissioner and adopted by Judge Graves, wherein all of the facts are fully set forth, omitting, however, certain preliminary statements here no longer necessary, and omitting also all reference to the jurisdictional question. With these omissions the statement and opinion follow, viz.:

"Some time prior to June, 1908, plaintiff filed in the circuit court of the city of St. Louis a partition suit against defendants, Camilla S W. Burrows et al., to partition in kind the real estate described in petition. McManus, the plaintiff, had a half interest in said property, Camilla S. W. Burrows a one-sixth interest, and Park, trustee, a one-third interest therein. Henry C. Grenner, Charles Z. Trembley, and respondent Frank H. Gerhart were appointed commissioners to partition said lands. They made their report and the same was confirmed by said court on June 23, 1908. The decree embodied allowances to attorneys, to the above commissioners, and others.

"The decree recites, among other things, the following: `And the court, being fully advised in and concerning the matter, doth further order the sum of $5,000, as and in full of his services as commissioner, be and is hereby allowed to Frank H. Gerhart.'

"A similar allowance was decreed to each of the other commissioners. The decree provided that the above sum should be taxed as costs against each party to the suit according to his respective rights, viz., to Thomas Ward McManus, one-half thereof, Matthew Park, trustee, two-sixths thereof, and said Camilla S. W. Burrows, one-sixth thereof.

"On November 20, 1908, an execution was issued on above judgment at the December term, 1908, No. 94. Among other things, it commanded the sheriff that out of the property awarded to Thomas Ward McManus he should collect $2,500 as costs adjudged to each of the above commissioners.

"On November 21, 1908, Camilla S. W. Burrows had paid her one-sixth of the obligation due from her under the decree, and was not further liable. McManus had paid his half of the allowances made to attorneys, but nothing further. Under the above circumstances, execution 94, supra, at the December term, 1908, was issued. It directed `that of the goods, chattels, and real estate awarded to Thomas McManus by the commissioners' report' the sheriff cause to be made one-half of the allowance specified, omitting the attorneys' allowance; and of the property of Park, trustee, one-half of all allowances specified, including attorneys' allowance.

"On November 23, 1908, McManus filed his motion to recall and quash said execution numbered 94, which was overruled and the cause appealed to the Supreme Court. Said execution contained the following indorsement: `Appeal bond filed and appeal to the Supreme Court allowed. Thereupon I return this execution unexecuted and unsatisfied.'

"On December 10, 1912, division 2 of this court affirmed the decision below. The case is reported in 246 Mo. at page 438, 152 S. W. 3, and following, where the facts are fully stated. "On December 24, 1912, before the mandate of this court in above cause reached the trial court, McManus paid the circuit clerk of that court $7,824.55, as costs in said cause. This was one-half of the face of all the obligations (except attorneys' fees) established by the decree of June 23, 1998. Respondent Gerhart, on December 27, 1912, collected, out of above sum, from the circuit clerk aforesaid, $2,500, being the face of the original allowance in his behalf, without interest. Matthew Park, as trustee, paid his share of the allowance to the three commissioners, but nothing toward the other allowances.

"At the February term, 1913, execution No. 85 was issued at the instance of attorneys to whom allowances were made. This execution recites the foregoing facts, and is directed against Park, trustee, alone, for the unsatisfied part of his obligation. His motion to quash said execution was overruled. This execution was satisfied by a sale thereunder, Park, trustee, filed a motion asking for a return of part of the money in the hands of the sheriff, being the interest on the allowance to counsel from the rendition of the judgment on June 23, 1908, amounting to $1,665. This motion was overruled as to said matter. Counsel for McManus, in the former case in this court, as well as in the present case, filed briefs in respect to said motion.

"At this stage of the proceedings, Camilla S. W. Burrows and Park, trustee, are discharged from all obligations for costs of any kind. Park, under the decision of the court, paid interest on the allowances. McManus settled for the attorneys' fees in full and on December 24, 1912, paid...