Monks v. Miller

• Citation: 13 Mo.App. 363
• Parties: JAMES A. MONKS v. CLARA J. MILLER, Appellant; JACOB MERTZ, Respondent.
• Decision Date: 13 March 1883
• Court: Court of Appeal of Missouri (US)

13 Mo.App. 363

JAMES A. MONKS

v.CLARA J. MILLER, Appellant; JACOB MERTZ, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 13, 1883.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

A. J. P. GARESCHÉ, for the appellant.

ROEDER & RITCHIE, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

An agreement in the following terms is the foundation of this proceeding:--

“Whereas, a petition for divorce is now pending in the circuit court of the city of St. Louis, in which F. H. Miller is plaintiff and Clara J. Miller is defendant, which case comes on for trial at the February term of said court; and whereas, the said defendant has lived with the said plaintiff during the fourteen years last past, as his wife, and there might be by said court allowed alimony and counsel fees, in said action, and whereas plaintiff has no funds to pay such possible alimony or counsel fees;

Now, therefore, Jacob W. Mertz, at the city of St. Louis, Missouri, agrees, in consideration of one dollar to him paid by defendant, to place the sum of seven ($700) hundred dollars into the hands of James A. Monks of the same place, to be by him paid over to the said defendant eleven days after the said plaintiff obtains in said suit a decree of full divorce.

No action being taken within said eleven days to set aside or modify such decree and in case the said plaintiff does not procure a divorce, the said sum of $700 is to be repaid to said Jacob W. Mertz eleven days after the final decree of said circuit court refusing said decree. The agreement between Jacob W. Mertz and the said defendant is made solely with the view of fixing possible alimony and counsel fees in the above action; and in case the court in which said cause is tried shall allow defendant counsel fees and alimony, then in that event the said sum of $700 shall be liquidated damages to be by said Mertz paid and by the said defendant accepted in full of any judgment or allowance by the court in such behalf.

In case of the death of the defendant before the final decree of divorce in said suit, the said sum of $700 shall be repaid to the said Mertz, and in case of the death of said plaintiff before the final decree, the money shall be paid to the said defendant.

Should any doubt, contingency arise as to whether a final decree has been obtained in the case, Mr. James A. Monks, the custodian of said money, shall take the opinion of the deputy clerk of the court room in which said cause was tried, and his opinion shall be final and conclusive.

And it is further agreed and understood that for all purposes relating to defendant's security as against said Mertz's creditors, the said $700 shall become the property of defendant so soon as placed in the hands of James A. Monks, subject to the conditions and stipulations aforesaid.

This agreement, executed in triplicate, signed, sealed, and delivered this 2nd day of February, A. D. 1880.

[Signed]

CLARA J. MILLER.

JACOB MERTZ.”

“I accept the above trust.

J. A. MONKS.”

In December, 1881, the plaintiff filed his petition, alleging that the money mentioned in the agreement was still in his hands, and that he was ready and willing to pay the same to the party entitled thereto. That each of the parties defendant made claim to the money, and the plaintiff was ignorant of their respective rights. He prayed for permission to pay the money into court, and that the defendants be directed to interplead. The proper orders were made, and separate answers were filed by the defendants, each claiming ownership of the fund. Frederick H. Miller, the husband of Clara J.,...