Starr v. Penfield

• Decision Date: 16 July 1918
• Docket Number: No. 19420.,19420.
• Citation: 205 S.W. 541
• Parties: STARR v. PENFIELD et al.
• Court: Missouri Supreme Court

205 S.W. 541

STARR v. PENFIELD et al.

No. 19420.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

Action by Mary E. Starr against Arthur H. Penfield and others. From a judgment for defendants (182 S. W. 113), plaintiff appeals. Reversed and remanded.

This is a proceeding by creditors' bill to subject certain shares of stock belonging to the wife in a real estate corporation to the debt of the husband. There was a decree in favor of defendants, and the plaintiff appealed to the Kansas City Court of Appeals, where the decree was affirmed, in an opinion by Trimble, J. (182 S. W. 113); but the cause was certified to this court (205 S. W. 540), because of the fact that one of the judges of that court deemed the opinion in conflict with Ricketts v. Hart, 150 Mo. 68, 51 S. W. 825, Everett v. Butler, 192 Mo. 564, 91 S. W. 890, and Lane v. Railroad, 132 Mo. 4, 33 S. W. 645, 1128. There was a previous appeal by the plaintiff, winch is reported in 166 Mo. App. 302, 148 S. W. 382.

Defendants Arthur H. and Anna A. Penfield are husband and wife. In the early part of the year 1903, he owned 2 shares of stock in the Merchants' Improvement & Investment Company, hereafter called the corporation. She owned 49 shares, and the remaining 49 shares were owned by her father, Thomas Ashton. For the purpose of improving the real estate of the corporation, it incurred a large amount of indebtedness, which was paid by the stockholders in proportion to their stock. The plaintiff loaned her brother, the defendant Arthur H. Penfield, $4,000 on his note in. April, 1903. He at once used that money in paying such debts of the corporation, and that money went to the credit of his and his wife's stock in the settlement of those matters among the stockholders of the corporation. In other words, that $4,000 went directly to the enhancement of the value of the stock as held by the husband and wife. The note was subsequently renewed, and in January, 1909, plaintiff recovered judgment in the circuit court of Buchanan county thereon for $4,466.67, on which execution was issued without avail. There was evidence tending to show insolvency of Arthur H. Penfield during all that time. The 2 shares of stock held by the husband were subsequently sold by him to third parties.

On the first hearing of this last appeal in the Court of Appeals, at the October term, 1914, appellant's abstract failed to show any exception saved to the overruling of the motion for a new trial. Respondents made the one point of such failure. The court, for that reason, refused to consider anything but the record proper, and affirmed the judgment. A rehearing was granted. The cause was docketed for rehearing at the March term, 1915. Appellant in due time prior to such term filed a supplemental abstract, showing the overruling of the motion for a new trial and plaintiff's exceptions to such overruling. Respondents then filed a brief on the merits, saying nothing about the failure of the original abstract in the particular above mentioned. But the Court of Appeals, of its own motion, refused to pass on the merits, and held, in effect, that the appellant had no right to file her supplemental abstract.

W. K. James, of St. Joseph, for appellant.

ROY, C. (after stating the facts as above).

I. Since this case was certified here, this court in banc, in Paving Company v. Realty & Imp. Co., 270 Mo. 698, 196 S. W. 1142, has held that the granting of a rehearing in a case "leaves the case just where it was when filed in the court." That case cites 3 Cyc. 219, thus:

"Mien a...