Pickel v. Pickel

• Decision Date: 09 May 1912
• Citation: 147 S.W. 1059
• Parties: PICKEL v. PICKEL et al.
• Court: Missouri Supreme Court

147 S.W. 1059

PICKEL v. PICKEL et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

Rehearing Denied June 1, 1912.

1. HUSBAND AND WIFE (§ 299) — CONVEYANCE BY HUSBAND IN FRAUD OF WIFE — EVIDENCE.

In an action by a married woman to set aside a conveyance by her husband, claimed to be in fraud of her rights to maintenance, evidence held insufficient to authorize a finding that the property which the husband had conveyed to his father had been given him by the father under a contract to retransfer.

2. HUSBAND AND WIFE (§ 299) — MAINTENANCE OF WIFE — TIME OF ACCRUAL OF OBLIGATION.

In view of Rev. St. 1909, § 8296, providing that no property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, the obligation of a husband to support his wife and infant child matures at the time of the marriage and birth of the child, and cannot be classed subsequent to his debts incurred after marriage.

3. JUDGMENT (§ 251) — AMENDMENTS — DEPARTURE — WAIVER.

Where, at the close of the evidence, an amended petition was filed by leave of court, and no effort was made to strike it out as a departure, the judgment properly rests on such petition.

4. PLEADING (§ 246) — AMENDMENT — RIGHT TO AMEND.

In an equitable action, where defendants changed their evidence as previously given in their depositions, and by stipulation of parties issues pending in other suits were ingrafted on this suit, it was proper for the court to allow an amendment, under Rev. St. 1909, § 1848, providing that the court may at any time before final judgment, in furtherance of justice, amend any pleading.

5. FRAUDULENT CONVEYANCES (§ 239) — CANCELLATION OF CONVEYANCE — JURISDICTION.

Where a husband, after his wife had been decreed separate maintenance, fraudulently conveyed property to his father, and it was clear that the parties to the transfer intended to defeat the wife's rights, a suit in equity to set aside the conveyance was proper, though the wife had a remedy at law by garnishment; it appearing that the maintenance was payable in installments, and that a multiplicity of suits would be required if the matter was not disposed of in equity.

6. FRAUDULENT CONVEYANCES (§ 261) — PLEADING — INSOLVENCY.

An allegation that defendant had transferred all of his property of any value to his codefendant was a sufficient allegation of insolvency to warrant the maintenance of an action to set aside the defendant's conveyance as in fraud of creditors.

7. HUSBAND AND WIFE (§ 299) — CONVEYANCE BY HUSBAND IN FRAUD OF WIFE — RECEIVER.

Where defendant, after his wife had been decreed separate maintenance, conveyed all of his property to his father, and it appeared that both he and his father were attempting by all means to defeat the right of the wife, it was proper, in a suit to set aside the conveyance, to appoint a receiver and sequester the property of defendant, so that so much of it as necessary might be applied to the support of his family.

8. COSTS (§ 172) — CONVEYANCE TO DEFEAT WIFE'S MAINTENANCE — ATTORNEY'S FEES.

Where, at the suit of a wife, a conveyance by her husband was set aside as fraudulent as to her rights to maintenance, it was improper to allow her an attorney's fee as part of the costs.

9. HUSBAND AND WIFE (§ 299) — ANOTHER ACTION PENDING — SEPARATE MAINTENANCE.

Where the circuit court of one division granted a wife separate maintenance and retained jurisdiction of the parties, that jurisdiction did not prevent a subsequent action in another division to set aside the husband's fraudulent conveyance of his property made with intent to defeat the wife's rights under the decree for separate maintenance.

10. APPEAL AND ERROR (§ 170) — REVIEW — ERRORS PRESENTED BELOW.

Where the constitutionality of a statute was not called to the attention of the trial court in a timely manner, it cannot be reviewed.

11. APPEAL AND ERROR (§ 302) — QUESTIONS PRESENTED FOR REVIEW — MOTION FOR NEW TRIAL.

The constitutionality of a statute cannot be reviewed, where the motion for new trial did not designate the particular clause or provision of the state or federal Constitution which rendered it invalid.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Ella M. Pickel against William Pickel and another. From a decree for plaintiff, defendants appeal. Reversed in part and in other respects affirmed.

Action in equity to set aside conveyance of corporate stock and to subject said stock to payment of judgments. From a decree for plaintiff, defendants appeal.

This action grows out of prior litigation between plaintiff, Ella Pickel, and defendant Frederick J. Pickel in the circuit court of St. Louis city. On June 22, 1910, plaintiff separated from her husband, Frederick J. Pickel, and retained the custody of their only child, a son, of the age of six years. In November, 1910, plaintiff instituted against defendant Frederick J. Pickel a suit for maintenance of herself and child, under section 8295, R. S. 1909. In that suit she was allowed $80 per month for her maintenance during the pendency of the action, and upon the final hearing thereof, on March 15, 1911, she was awarded $100 per month for the permanent support of herself and said child, together with costs of the action.

This final judgment for support and maintenance of plaintiff and her child was rendered by Division No. 3 of the circuit court of St. Louis city, and at the time of entering said judgment, said trial court retained jurisdiction of the subject-matter and parties to the action, and leave was granted to each of said parties to apply for such supplemental or additional orders as they might think necessary for the protection and enforcement of their rights under the judgment.

This part of the decree for maintenance is of some importance, in view of the contention of defendants that the judge who tried the present action did not sit in Division No. 3 of the circuit court of St. Louis city, and therefore possessed no jurisdiction of this action, one of the purposes of which is to aid in carrying into effect the decree for maintenance.

On March 27, 1911, said Division No. 3 of the circuit court of St. Louis city entered a further order in said action for maintenance, allowing to plaintiff therein the sum of $750 for attorney's fees in prosecuting said cause. There is oral evidence that an appeal was taken from said allowance of attorney's fees, but such evidence is unsatisfactory; and, as the pendency of such appeal is not set up in defendant's demurrers nor in their answer in this cause, we will infer that no such appeal is pending. Section 1800, R. S. 1909.

On October 25, 1910, defendant Frederick J. Pickel instituted a suit for divorce against plaintiff. On January 14, 1911, the circuit court of St. Louis city rendered a judgment, awarding plaintiff $400 for suit money and attorney's fees in said divorce suit. On February 7, 1911, Frederick J. Pickel dismissed his divorce suit, and the costs of that action, amounting to $290.85, were taxed against him. No appeal was taken from said allowance of suit money and attorney's fees, nor from the judgment for costs.

Defendant Frederick J. Pickel, having failed to pay some of the installments of the judgment for maintenance and the judgment given in plaintiff's favor for attorney's fees, suit money, and costs in the divorce suit, plaintiff caused execution to be issued on said judgments and levied upon five shares of stock in the Pickel Marble & Granite Company, standing in the name of defendant William Pickel, but which had been transferred to him by his son, Frederick, after the latter was separated from his wife. Upon the seizure of said stock defendant William Pickel lodged with the sheriff of St. Louis city written claims as owner of said stock. The plaintiff duly filed with the sheriff her indemnifying bonds under each of said executions; whereupon defendant William Pickel, to prevent a sale of the stock so levied on, executed and delivered to said sheriff his bonds, conditioned for the safe-keeping and preservation of said stock, and that same should be produced when and where the court might direct, as provided by section 2204, R. S. 1909. These claims and bonds were returned by the sheriff to the court out of which the execution issued, and the claims of William Pickel to the ownership of said stock are now pending as independent actions between plaintiff and William Pickel in the circuit court of St. Louis city. However, by stipulation of the parties, the claims of plaintiff and defendant William Pickel, in the actions growing out of the aforesaid executions shall be considered and determined in this action.

The object of this action is to set aside transfers of corporate stock of Frederick J. Pickel to his father, William Pickel, which transfers are alleged to have been made to defeat plaintiff's claim for support of herself and child. Said stock so alleged to have been fraudulently transferred is described as follows: Seventy-five shares of the capital stock of the Pickel Marble & Granite Company, a corporation, of the par value of $7,500, but of the actual value of at least $15,000; 10 shares of the capital stock of the German American Bank, of the par value of $1,000, and of the actual value of about $2,000; 5 shares of the capital stock of the Broadway Savings Trust Company, of the par value of $500, and of the actual value of in excess of $1,000; 15 shares of the capital stock of the St. Anthony Improvement Company of San Antonio, Texas.

Upon final hearing, the court dismissed the plaintiff's bill as to the defendant Pickel Marble & Granite Company, and plaintiff did not appeal from that part of the judgment.

The judgment below in this case was rendered July 24, 1911, and finds that defendant Frederick J. Pickel is insolvent and execution proof, except as to the corporate stock hereinbefore described, and further finds that said stock was...