Pickel v. Pickel

• Decision Date: 17 June 1913
• Citation: 158 S.W. 8,251 Mo. 197
• Parties: ELLA M. PICKEL, Appellant, v. WILLIAM PICKEL and FREDERICK J. PICKEL
• Court: Missouri Supreme Court

158 S.W. 8

251 Mo. 197

ELLA M. PICKEL, Appellant, v. WILLIAM PICKEL and FREDERICK J. PICKEL

Supreme Court of Missouri, Second Division

June 17, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Randolph Laughlin for appellant.

(1) The decree of July 24, 1911, was self-executing. A self-executing decree is not superseded by an appeal bond. Mann v Doerr, 222 Mo. 18; Commission Co. v. Spencer, 236 Mo. 628; Jayne v. Drorbaugh, 63 Iowa 715; Allen v. Church, 101 Iowa 123; Elliott's App Proc., secs. 392, 393; Finkelnburg's Mo.App. Pr., 76-77; State ex rel. v. Dillon, 96 Mo. 61. Especially is this true where the self-executing portion of the decree is merely a matter of grace or favor extended for a limited length of time. In such a case, the time expires, and the privilege with it, notwithstanding the appeal. Ferry v. Bank, 9 Abb. Pr. 103. It results that the affirmance of the decree by this court (Pickel v. Pickel, 243 Mo. 641) affirmed it as it then was (and, the privilege having expired, it affirmed the expiration of that privilege), and left the parties in the same position they would have occupied had there been no appeal at all. Respondents have not been able to meet, and have not met directly, any one of these four several contentions. But they have sought to escape them indirectly, by advancing other propositions inconsistent with the conclusion reached. (2) Payment or performance of an obligation imposed by judgment or decree is not an acceptance of benefit thereunder, but on the contrary is regarded as an act done by compulsion, and it will neither work an estoppel nor prevent or embarrass an appeal. Lumaghi v. Abt, 126 Mo.App. 228; Cassell v. Fagin, 11 Mo. 207; Dakota County v. Glidden, 113 U.S. 222.

Barclay, Fauntleroy, Cullen & Orthwein for respondents.

(1) In the original case the defendants gave bond, and this stayed all proceedings and the defendant could not be required to give the $ 10,000 bond until the judgment was ripe for execution. State ex rel. v. Lewis, 76 Mo. 370. (2) A mandate is the official mode of communicating the judgment of the appellate court to the lower court, and no proceedings could be had in the lower court until the mandate had been filed in such court. Lafferty v. Rutherford, 10 Ark. 453; People v. Wadloe, 166 Ill. 119; Piel v. Railroad, 12 S.W. 759. (3) One who has accepted satisfaction of a judgment or received the fruits of a judgment or decree cannot appeal therefrom. Wolfort v. Reilly, 133 Mo. 163; Rosenburger v. Jones, 48 Mo.App. 606; Robards v. Lamb, 76 Mo. 192; In re Sachleben, 106 Mo.App. 307; Waddingham v. Waddingham, 27 Mo.App. 596; Noah v. Insurance Co., 78 Mo.App. 370; King v. Campbell, 107 Mo.App. 496; Pockman v. Meatt, 49 Mo. 345; Evens v. Lubke, 15 Mo.App. 152. (4) Where the mandate fixes no specific time for compliance with the decision of the appellate court, the court below may fix the time. Ferriss v. Ferriss, 29 S.W. 976; Faircloth v. Isler, 76 N.C. 49; Bloor v. Smith, 96 N.W. 544. (5) On the remand of the cause the trial court may make any order or direction in its further progress that is not inconsistent with the decision of the appellate court, or that is necessary to carry such decision into effect. Patten v. Stitt, 34 N.Y.S. Ct. 346; Rogers v. Patterson, 4 Paige (N. Y.), 418; Bloor v. Smith, 96 N.W. 544. (6) The affirmance of the original judgment as modified by the Supreme Court was in effect a new judgment giving to Wm. Pickel the option to either file the bond within ten days therefrom or permit the property to be sold. Krause v. Steel Co., 91 P. 442.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C.

By its judgment of March 15, 1911, in a suit for maintenance, the circuit court of the city of St. Louis allowed plaintiff certain sums for attorney's fees and suit money and ordered her husband, defendant Frederick J. Pickel, to pay to her the sum of $ 100 on the first of each month thereafter for the support of herself and child. Thereupon plaintiff began a suit against her husband, Frederick J. Pickel, and his father, William Pickel, to set aside, on the ground of fraud, the transfer of certain corporate stocks from the former to the latter. On the 24th day of July, 1911, in that case, the court entered its decree wherein it found, in substance, that certain sums aggregating about $ 1500 were due plaintiff from her husband under the decree of March 15, 1911, in the suit for maintenance; that payments of $ 100 each would thereafter fall due each month under that decree; that defendant Frederick J. Pickel was "insolvent except as to the property hereinafter mentioned and is execution proof and that plaintiff's indebtedness cannot be collected except out of the property of said Frederick J. Pickel which is involved in this suit; that the said property consists of certain shares of stock . . .;" that these shares, specifying them, were worth "at least" $ 12,025; that the transfer of these stocks by Frederick J. Pickel to his father, William Pickel, was fraudulent and made and intended to defraud plaintiff and that as to plaintiff the transfer was "fraudulent and void." The decree proceeds:

"It is therefore ordered, adjudged and decreed by the court, that this cause be, and the same is hereby dismissed as to the defendant Pickel Marble & Granite Company;

"(5) That the defendant William Pickel may within ten days from the date hereof, pay to the plaintiff all moneys due to her under the aforesaid orders and judgments of the said courts, and unpaid, as heretofore found in paragraph 1 hereof, with interest on all from the date of maturity of each installment until paid, and also the costs hereof, and the attorney's fee herein allowed, and may, within said time, execute and deliver to the plaintiff his bond, in the full and just sum of ten thousand dollars, in due form, the form and security to be approved by the court, conditioned for the payment by him to the plaintiff of all moneys to become due to her hereafter under the said final decree of March 15, 1911, and under such modifications fications thereof or orders supplemental thereto as may be made from time to time by the court having jurisdiction of the cause wherein the same is entered.

"(6) If the said William Pickel shall fail, within said time, to pay said amounts, and to execute said bond, then, in that case, it is ordered, adjudged and decreed by the court;

"(7) That the said transfers of said stock (described in paragraph 3 hereof), from Frederick J. Pickel to William Pickel, be, and the same are hereby vacated and set aside.

"(8) That said defendants William Pickel and Frederick J. Pickel are each and both of them enjoined and prohibited from transferring or assigning, and from attempting to transfer or assign and from delivering, hypothecating, mortgaging, pledging or encumbering said stock, or any portion thereof, or any certificate or certificates thereof, and from setting up any claim thereto, or to any part thereof of any kind or character against any execution which plaintiff may cause to be issued on said orders and judgments mentioned in paragraph one hereof, or either of them, and levied upon the same, or upon any part thereof; and they and each of them are further enjoined and restrained from obstructing or delaying, and from attempting to obstruct or to delay, by the filing of any notice, third-party claim, bond or other paper, or in any other manner or form whatsoever, any sale under any such execution which the plaintiff may cause to be levied on said stock, or on any part thereof.

"(9) That if the defendant William Pickel shall avail himself of the benefit of paragraph 5 of this decree, and shall well and truly pay the money and execute and deliver the bond, within the time therein limited, then and in that case, and so long as the said William Pickel shall continue to pay the money due to the plaintiff, as and when the same shall become due, to the full amount of said bond, the plaintiff is enjoined and restrained from suing out any execution or executions to collect said money, or any part thereof. But if and when said William Pickel shall fail to pay any installment of money due plaintiff, as and when the same becomes due, this injunction created by this, the 9th paragraph of this decree, shall be and stand dissolved.

"(10) An attorney's fee of five hundred dollars is allowed plaintiff's attorney of record, for which let special execution issue against the shares of stock described in paragraph 3 hereof (or such portions thereof as plaintiff may elect to levy on) unless the defendant William Pickel shall pay said fee in accordance with the terms of paragraph 5 hereof. All other costs are ordered taxed against the defendants William Pickel and Frederick J. Pickel, for which let execution issue.

"(11) The court reserves jurisdiction of the parties and of the subject-matter of this controversy, and leave is given to all parties hereto to apply to the court, from time to time, for such further orders as may become necessary or proper to enable the plaintiff to collect the moneys found due and to become due to her by paragraph 1 hereof, including the right to move for a reference to take an accounting of the moneys due from William Pickel and the Pickel Marble & Granite Company, in the event it shall hereafter appear that such accounting is necessary to enable plaintiff to collect her claims."

On June 25, 1911, defendants filed in that case their motions for new trial. These were overruled on July 26, 1911, and on the same day each defendant filed his affidavit for appeal and on July 29, 1911, an appeal to this court was granted defendants. On July 26, 1911, plaintiff filed a motion to modify the decree which motion was on ...