Pendleton v. Perkins

• Decision Date: 31 March 1872
• Citation: 49 Mo. 565
• Parties: ALLAN B. PENDLETON, Plaintiff in Error, v. BELMONT PERKINS AND THE CITY OF ST. LOUIS, Defendants in Error.
• Court: Missouri Supreme Court

49 Mo. 565

ALLAN B. PENDLETON, Plaintiff in Error,

v.BELMONT PERKINS AND THE CITY OF ST. LOUIS, Defendants in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to St. Louis Circuit Court.

BLISS, Judge, delivered the opinion of the court.

The plaintiff presents a bill in equity to compel the city of St. Louis to pay a debt due him from defendant Perkins, charging that Perkins has absconded, so that judgment cannot be obtained against him; that he is insolvent and has no property in the State subject to attachment, but that there is money in the city treasury belonging to him. The city demurs to the petition, and judgment is rendered against the plaintiff on the demurrer, and the case comes here upon error. Three questious are presented: 1. Will a creditor's bill lie to subject a fund or chose in action of the debtor, without showing fraud or some other recognized ground of equitable jurisdiction? 2. Will it lie in favor of the plaintiff in this case without first having obtained judgment and issued execution? 3. Will it lie against the city?

The remedy given judgment creditors in Missouri by the garnishment act, so superior to and ordinarily superseding equity proceedings, has made the first question with us a new one. Yet in other States, even in the absence of a statute authorizing it, courts of chancery lend their aid to enable such creditors to subject property and funds, including choses in action, to the satisfaction of the judgment, when they cannot be reached by execution, and when the execution cannot be otherwise satisfied. In the absence of fraud, trust, mistake or some other recognized source of original chancery jurisdiction, these ancillary proceedings have not been looked upon favorably, but parties have been referred to statutory remedies, and sometimes the relief has been altogether denied. A leading case is Hadden v. Spader, 20 Johns. 554, heard in the New York Court of Errors, before the adoption of the revised statutes making provision for petitions of this kind. Mr. Justice Woodworth pronounced the leading opinion, and held that funds and stocks belonging to the debtor and debts due him could be reached by an equity proceeding on behalf of the judgment creditor, notwithstanding they were not purchased, nor the debts created by means of property fraudulently withdrawn from the reach of the creditor. Justice Platt wishing to limit the extent of the jurisdiction to cases of fraud, Chief Justice Spencer expressly assented to the broader view of Woodworth, and it is presumed the affirmance of the judgment below was based upon that opinion. Afterwards, in Donovan v. Finn, 1 Hopkins Ch. 59, Sanford, Chancellor, gave an elaborate opinion, declining to be governed by the views of Woodworth and Spencer in Hadden v. Spader, and adopting that of Justice Platt. This discrepancy of views is supposed to have caused the revisors of 1828 to incorporate a provision in the revised statutes, giving the Court of Chancery the broad jurisdiction in aid of execution claimed for it in Hadden v. Spader. But without resorting to the statute, the views of Chancellor Sanford did not remain unquestioned; but in 1829, in Edmonston v. Hyde, 1 Paige, 637, the chancellor held that any species of equitable property of the debtor, including debts due him, might be reached to satisfy a judgment; and afterwards, in Tarbell v. Griggs, 3 Paige, 207, he remarks that “it has been frequently decided that this section of the revised statutes (the one above referred to) is not introductory of a new principle, but is only an affirmance of what was considered by the court of dernier resort the legitimate jurisdiction of the Court of Chancery previous to the adoption of the revised statutes.” In Bigelow v. Congregational Society, 11 Verm. 283, Judge Williams refers approvingly to the general doctrine of Hadden v. Spader, and it is expressly adopted in Williams v. Hubbard, Watkins Ch. 28. In most of the States this subject is regulated by statute, and their decisions are hence without force with us.

The affirmation of the proposition that a judgment creditor, who has exhausted every ordinary means to satisfy his judgment, should have the aid of the court, in analogy to its ancient chancery jurisdiction, to reach his debtor's funds, whether fraudulently withdrawn or concealed or not, seems to be necessarily inferred from the main object of chancery jurisdiction--to furnish a remedy when the strict rules of legal practice fail. Creditors ordinarily invoke its aid to pursue the effects of their debtors that are fraudulently withdrawn from their reach. But a debtor may be a money-lender and be accumulating wealth, without having expressly withdrawn property from the reach of execution, and in the absence of our statutory remedies he might defy his creditors unless chancery could subject his credits. The chancellor, in Donovan v. Finn, admits that, under his view, the common law has furnished no relief in a case of this kind, and denies the maxim that “there is no wrong without a remedy.”

Secondly, are there any circumstances that will authorize relief without a judgment? Scott v. McMillan, 1 Littell, 302, was a bill to set aside a fraudulent conveyance...