Padberg v. Padberg
| Decision Date | 05 February 1935 |
| Docket Number | 23317 |
| Parties | PADBERG v. PADBERG et al. |
| Court | Missouri Court of Appeals |
Rehearing Denied Feb. 19, 1935.
Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.
“ Not to be published in State Reports.”
Suit by Myrtle Godfrey Padberg against Paul J. Padberg and others. From a judgment for plaintiff, all four defendants separately appeal, the appeals being consolidated.
Reversed and remanded.
Dunbar & Dubail, of St. Louis, and Alfred H. Kerth, of Clayton, for appellants.
Davis & Todd and Lee A. Hall, all of St. Louis, for respondent.
BENNICK Commissioner.
This is a suit in equity, brought by Myrtle Godfrey Padberg against her husband, Paul J. Padberg; his brother, Edwin L. Padberg; his father, John F. W. Padberg; and the Padberg Hardware & Furniture Company, a corporation, of which the three individual defendants are the sole stockholders. The purpose of the suit is to reach and conserve the assets of Paul J. Padberg, which it is alleged that he and his father and brother have conspired and connived together to conceal so as to defraud plaintiff of her rights therein, and to permit him to escape his obligation to support his three minor children. Suit was instituted in the circuit court of St. Louis county on July 10, 1933, returnable to the September, 1933, term. Upon a trial of the issues a decree was entered in favor of plaintiff, and against the defendants, in general conformity with the prayer of the petition; and from the judgment so rendered separate appeals were perfected by the defendants to this court, wherein all four appeals have been consolidated into one cause by an order duly entered of record.
From plaintiff’s petition it appears that on February 24, 1931, she brought an action in the circuit court of St. Louis county for a divorce from her husband, defendant Paul J. Padberg; that he filed an answer and cross-bill to her said petition; and that on a trial of the cause the court rendered judgment for the defendant on plaintiff’s petition, and for plaintiff on the defendant’s cross-bill. Cross-appeals from such judgment are now pending in this court.
It further appears that pending her appeal the court allowed plaintiff certain sums as suit money and for the support of herself and the three minor children; that at the time of the filing of her petition herein an aggregate sum of $310 was due plaintiff; and that on July 6, 1933, she caused execution to be issued in the cause to collect said sum of $310 from defendant Paul J. Padberg, but that the same was returned into court by the sheriff unsatisfied.
She then alleged that in truth and fact her husband, defendant Paul J. Padberg, was the owner of the hardware business conducted in the name of defendant Padberg Hardware & Furniture Company, a corporation, which had been organized on February 14, 1931; that the incorporation of said hardware company had been merely a scheme to place the assets of her husband beyond the reach of execution; and that he and the other individual defendants had conspired together to defeat execution and the claims of plaintiff and the three children by entering into numerous fraudulent transactions and conveyances.
It was further alleged that pursuant to the conspiracy defendant Paul J. Padberg had made a pretended conveyance of his hardware business to his brother, defendant Edwin L. Padberg; that thereafter the individual defendants caused the corporation to be organized with a capital stock of 100 shares of no par value, and the business to be conveyed to it for one share of stock issued in the name of Paul J. Padberg, 98 shares of stock issued in the name of his brother, Edwin L. Padberg, and 1 share of stock issued in the name of his father, John F. W. Padberg; and that the 1 share of plaintiff’s husband was thereafter pledged to his father for a fictitious loan.
Plaintiff then set up that if the conveyances made by defendant Paul J. Padberg were allowed to stand he would be thereby rendered insolvent, and she and the children would be deprived of their means of support and maintenance.
Her prayer was that the court set aside and cancel said pretended and fraudulent conveyances and transactions; that it determine the assets of defendant Paul J. Padberg; and that it appoint a receiver to collect, administer, preserve, and disburse the assets of the said Paul J. Padberg, and of the Padberg Hardware & Furniture Company as well.
Apparently the defendants answered by general denials and then subsequently withdrew the same, though the record does not indicate that they were ever to be regarded as in default; no more being shown than that they refiled their answers before the taking of testimony was begun.
When the case was called for trial on the morning of December 15, 1933, during the September, 1933, term, an application for a change of venue was filed upon the affidavit of defendant Paul J. Padberg, and was promptly overruled by the court as not being in proper form. Counsel for defendants at once asked leave to amend and refile the application, to which the court, without knowing what the application would contain, answered, "That will be denied." Thereupon counsel announced that they were not prepared to go to trial and induced the court to pass the case until 1 o’clock of the same afternoon; and as soon as court convened for the afternoon session the following application for a change of venue was filed:
"The petition of Paul John Padberg *** defendant in the above-entitled cause, respectfully represents that a suit has been commenced against him in the Circuit Court of St. Louis County, Missouri, by the above-named Myrtle Godfrey Padberg for the purpose of an appointment of a receiver for said defendant and for the defendant Padberg Hardware & Furniture Company, a corporation, another defendant named in this suit, for the purpose of setting aside a transfer of certain assets to said corporation, all of which relief is sought for the ultimate purpose of collecting a judgment rendered against this defendant in favor of Myrtle Godfrey Padberg, plaintiff herein, and other equitable relief, as prayed for in the plaintiff’s petition; that your petitioner has good reason to believe, and does believe, that he cannot have a fair and impartial trial of said cause in said court on account of the bias and prejudice of the Judge, Hon. Jerry Mulloy, Judge of Division No. 2 of the Circuit Court.
That this defendant has acquired the information and knowledge, and become possessed of the information and knowledge of said bias and prejudice of the Judge since the adjournment of the last regular term of the court, to wit, on the 14th and 15th days of December, 1933.
That he has given notice of the making of this application to Josephus M. Todd, one of the attorneys of record for the plaintiff.
Wherefore, your petitioner prays the Court to proceed no further in the above cause, but to grant a change of venue therein in accordance with the statutes and laws of the State of Missouri.
Paul John Padberg, being duly sworn, upon his oath says that the facts stated in the above petition are true and correct; that he has just cause to believe that he cannot have a fair and impartial trial in said court on account of the causes alleged; that he became possessed of his information and knowledge of the causes set out in this petition since the adjournment of the last regular term of the court, to wit, on the 14th and 15th days of December, 1933.
The application so filed was immediately denied by the court without comment; exceptions were noted on behalf of defendants; their previous answers were refiled; and the taking of testimony was then begun, the trial culminating in the entry of the decree for plaintiff from which the appeal has been taken.
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