Rieper v. Rieper

• Citation: 79 Mo. 352
• Parties: RIEPER v. RIEPER, Defendant, and WEHRMANN, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

79 Mo. 352

RIEPER

v.RIEPER, Defendant, and WEHRMANN, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Franklin Circuit Court.--HON. JOHN W. BOOTH, Special Judge.

REVERSED.

John R. Martin for appellant.

J. C. Kiskaddon for respondent.

PHILIPS, C.

In May, 1878, the plaintiff filed her petition against the defendant Charles Rieper, alleging in substance, that she was married to defendant on the 8th day of August, 1877, in the city of St. Louis; that at the time of her marriage she was the owner and possessed of $1,400 in money, and other personal property named, and that her husband had no property whatever; that defendant immediately after the marriage took possession of said money and has never accounted therefor to her; that soon afterward he began and continued toward her a course of treatment that was contemptuous, cruel and at times barbarous-- specifying many of the acts. It was then alleged that out of said money defendant used about $65 in purchasing furniture for their house, and the balance he used in purchasing a stock of goods at South Point in Franklin county, of one Klebba, by whose name the store was known; and that said money is all invested in the goods now in said store; that defendant is threatening to dispose of said goods, and to leave the country and entirely desert the plaintiff, and refuses to account to her for said money or any part thereof; that if he sells or otherwise disposes of said goods, etc., she will have nothing wherewith to support herself or her infant daughter by her former husband. It is then averred that she did not at any time consent in writing for defendant to reduce said money or property to his possession. She prayed the court for the appointment of a receiver to take possession of the goods and sell the same under the direction of the court, and that out of the proceeds the sum of $1,400 be set apart as her separate property, for the appointment of a trustee, etc., and for all proper and necessary orders, decrees, etc., and for all proper relief. The petition was verified by affidavit.

Afterward, at the July court plaintiff filed an application for an injunction in aid of the said suit, and for the appointment of a receiver. The defendant appeared and took issue, and on hearing the application for the appointment of a receiver the court granted the application and appointed the appellant here, Louis Wehrmann, receiver, who, pursuant to orders and directions of the court, accepted the appointment, qualified by giving the required bond, took possession of the said goods, and sold them as directed by the order of the court. The order of the court provided that any party interested might apply to the judge, in chambers, for further orders and directions, on giving reasonable notice to other parties in interest. At the November term of said court the said receiver filed his report as such receiver, showing the sale of the goods in compliance with the order of the court, and showing a net balance in his hands, after paying expenses, of $2,230.72, which report was approved by the court.

The defendant answered tendering the general issue, except as to the coverture, which he admitted.

Afterward, at the June term, 1879, Wehrmann came into court and filed an intervening petition, as the creditor of said Charles Rieper. He set out substantially the facts contained in the petition in regard to the purchase of the stock of goods from Klebba, alleging, however, that only $500 in cash were paid down, and that for the balance of the purchase money the defendant and petitioner, Wehrmann, executed their notes, payable to the order of Klebba and maturing at specified periods thereafter. It was averred that petitioner signed said notes as surety for defendant Rieper, but that he became said surety at the request of both plaintiff and defendant, on the assurance of plaintiff that she would see him protected. He averred that at the instance of defendant he had taken up certain of said notes, amounting to the sum of $1,612.65, for which defendant had executed to him his note, dated November 12th, 1877, with interest from date at ten per cent; that defendant had made certain payments thereon, specified; that as such surety he had to pay the balance of said notes amounting to $1,400, with interest. The petition then alleged the insolvency of defendant, except as to said goods, and denied that the plaintiff was a creditor of her husband, and charged that her claim was a fraud upon defendant's creditors. It prayed the court to order the distribution of the proceeds of the goods in his hands among the creditors of defendant, Charles Rieper.

On the same day other creditors of defendant, merchants in St. Louis, A. Frank & Sons, Nave, Goddard & Co., Nulsen & Co., filed like intervening petitions, claiming to be creditors of Charles Rieper on account of goods sold him for said store. Their petitions alleged that the goods wer sold to defendant with the knowledge and consent of plaintiff, and upon the faith of defendant's ownership of the store, and conclude with a like prayer for a pro rata distribution of the proceeds of the goods. Plaintiff answered the intervening petitions tendering the general issue, and re-asserting that the goods were purchased with her separate money, etc.

The cause was heard by Hon. John W. Booth, special judge. The evidence was voluminous. Plaintiff's evidence well sustained the allegations of the petition in respect to the misconduct of her husband. He seems to have acted toward his wife as if his whole purpose in marrying was to obtain possession of her money, and then spurn her. She had $1,400 when they married, and a mortgage for $700. It appears that in anticipation of this marriage, Rieper, who was wholly impecunious, had negotiated for this stock of goods. The night after his marriage his wife handed to him $1,061.90 of her money, as she claims, to save or keep for her. He gave back to her $100 and the mortgage, and the next day they went to Franklin county, and she handed this money and mortgage to said Wehrmann to put in his safe. All are agreed that at least $900 of this money went into the stock of goods. Defendant Rieper ran the business in his name, ignoring his wife as much as possible. The stock of goods bought of Klebba amounted to $3,600 by invoice, and the additional goods bought in St. Louis, made the aggregate of goods between $5,000 and $6,000, obtained by defendant, yet the amount on hand as realized by the receiver, on favorable sales, showed only $2,230 on hand when plaintiff filed suit. What defendant did with the balance of this property is unexplained.

Wehrmann testified, when first on the stand, that a few days after Rieper and his wife had taken stock, preliminary to consummation of the trade they came to him and stated that Klebba wanted security, and that he consented to go on the notes at the request of plaintiff. The next day, after others of his own witnesses had sworn that Mrs. Rieper was not with her husband there, and was not present when the notes were made, Wehrmann asked to come back on the stand, and then stated that the day before this the plaintiff was there when he proposed that he go on the notes. When Charles Reiper, who seemed to be active against his wife throughout her struggle to save her own, was first on the stand, he testified that it was before he was married at all that Wehrmann agreed to go on the notes. As this was so utterly fatal to Wehrmann's claim that he had gone on the notes at the instance of Mrs. Rieper, this witness also came back on the stand next day and swore that it was after he was married when the notes were mentioned. Mrs. Rieper denied, in her testimony, the statement of Wehrmann touching his signing the notes at her instance, and denied all knowledge of the transaction.

The evidence on the behalf of the St. Louis merchants, intervening petitioners, was to the effect that they had sold goods to C. Rieper in the belief that he was the owner of the concern at South Point, though the witness from the firm of Frank & Sons testified that in August, 1877, he heard Mrs. Rieper say she gave her husband $1,000, that was paid on the stock. Whether this was before or after the sale of the goods by the house to Rieper, does not appear.

The court found the issue for the plaintiff, that she was the owner of the sum of $900 in cash, at the time of the marriage, which she handed to...