State ex rel. Adkins v. Grugett

• Decision Date: 20 September 1933
• Citation: 63 S.W.2d 413,228 Mo.App. 8
• Parties: STATE OF MISSOURI EX REL., PAUL ADKINS ET AL., RESPONDENTS, v. S. GRUGETT ET AL., APPELLANTS
• Court: Missouri Court of Appeals

63 S.W.2d 413

228 Mo.App. 8

STATE OF MISSOURI EX REL., PAUL ADKINS ET AL., RESPONDENTS, v. S. GRUGETT ET AL., APPELLANTS

Court of Appeals of Missouri, Springfield

September 20, 1933

Rehearing denied, October 7, 1933.

Appeal from the Circuit Court of Wayne County.--Hon. E. M. Deering Judge.

AFFIRMED.

Judgment affirmed.

McKay & McKay and Orville Zimmerman for appellants.

Langdon R. Jones for respondents.

BAILEY J. Allen, P. J., concurs; Smith, J., not sitting.

OPINION

BAILEY, J.

This suit is brought in the name of the State of Missouri at the relation of Paul Adkins and Maletta Adkins, minors, by B. H. Grugett, guardian and curator, upon the official bond of S. E. Grugett as Sheriff of Dunklin County, Missouri. The regular judge of the Dunklin County Circuit Court disqualified himself and the cause was transferred to the Circuit Court of Wayne County, where it was tried by the court without a jury on the 6th day of August, 1931. After due trial the cause was taken under advisement and judgment rendered against defendants on the 4th day of February, 1932, in the sum of $ 1690.42. An appeal was taken to this court and heard at the May Call of the March Term, 1933.

Plaintiffs' petition, after alleging that defendant S. E. Grugett was the duly elected and acting sheriff of Dunklin County for a term of four years commencing on the 1st day of January, 1925, and expiring on the 31st day of December, 1928, and that the other defendants were sureties on his official bond as sheriff, further alleges that on October 9, 1924, there was filed in the Circuit Court of Dunklin County, an action in partition in which Mary Parker Gaston was plaintiff and Levern Parker, William (Billie) Parker, Ethel Parker, Paul Adkins, Maletta Adkins, Mary E. Gunter and J. I. Caneer were defendants, the action being to partition a certain described 120 acres of land in Dunklin County; that the petition in said suit alleged that the parties plaintiff and defendants owned all the interest in said real estate and that all debts against the estate had been paid except a deed of trust held by defendant J. I. Caneer; that a guardian ad litem was appointed for the minor defendants in that suit; that at the hearing on said cause the court found and decreed that the land should be partitioned and that the interest of Paul Adkins and Maletta Adkins, jointly, was an undivided 10-54 interest in said land subject to the dower right of the widow therein; that commissioners were appointed and made their report at the July Term, 1925, in which they reported that partition in kind could not be made without great prejudice to those interested; that thereupon the court ordered the sheriff to sell said real estate in accordance with law; that in conformity with said order the said sheriff sold said real estate for the price of $ 9800 less taxes then due; that said Sheriff made a report of said sale which was approved by the court during the October Term, 1925; that the court further ordered that distribution be made in accordance with the decree of the court; that S. E. Grugett, as sheriff, made and executed a deed to the purchaser at said sale and that thereby Paul and Maletta Adkins were divested of all right and title in and to the land in said partition proceedings; that it thereupon became the duty of said sheriff to pay over to Paul and Maletta Adkins their share of the proceeds from said sale amounting to $ 1291.10, which amount said sheriff then had in his hands belonging to them; that said sheriff received said money in his official capacity, but refused to pay same either to said minors or their guardian; that thereby said sheriff and the sureties upon his said official bond became liable to the State of Missouri for the use and benefit of plaintiffs in the sum of $ 1291.10, for which plaintiffs pray judgment.

Defendants' answer, among other things, contains the following averment: "that the plaintiffs herein are the minor children of Mary Parker Adkins; that Mary Parker Adkins was the daughter of John T. Parker, deceased, who was the common source of title, the proceeds of the sale of which is in controversy in this action; that John T. Parker died on or about the day of December, 1917, leaving as one of his children and heirs at law of his property Mary Parker Adkins; that Mary Parker Adkins was the wife of R. A. (commonly called Bob) Adkins, father of the minor children, plaintiffs herein; that at the death of John T. Parker, deceased, on the day of December, 1917, the said Mary Parker Adkins and R. A. (commonly called Bob) Adkins were husband and wife and had borned to them Paul and Maletta Adkins, their children, as such husband and wife; that on or about the day of in the year 1919 or 1920 Mary Parker Adkins died leaving surviving her, her two minor children, plaintiffs herein, and her husband, R. A. (commonly called Bob) Adkins, and left her interest in her deceased father, John T. Parker's real estate; that under the law as it then existed the said R. A. (commonly called Bob) Adkins was entitled to dower by the curtesy, that is to say the use and control of all the real estate left by his deceased wife, Mary Parker Adkins, for and during his natural life; that the said R. A. (commonly called Bob) Adkins was, at the time of the death of his wife, Mary Parker Adkins, under the age of twenty-nine years; and that his curtesy interest in said real estate did exceed and was greater than plaintiff's claim in the land mentioned in their petition."

It was further alleged in said answer that certain attachment suits were brought against said R. A. Adkins in which judgments were obtained aggregating the sum of $ 1291.10, and that that amount, derived from the sale of said real estate, was paid out upon valid judgments of the Circuit Court rendered against defendant S. E. Grugett as garnishee, under which said defendant was ordered to pay over said money to the parties plaintiff in said suits; that the interest of said R. A. Adkins was duly and regularly acquired under and by virtue of said attachment suits and his interest in said property being equal to or greater than the interest of the minors, there was no obligation on the part of defendant Sheriff or his bondsmen.

There is no dispute about the facts in this case. The record consists almost entirely of documentary evidence tending to prove both the allegations of the petition and defendants' answer. The record shows that John T. Parker died in 1917 or 1918, intestate, seized of the real estate involved in said partition suit; that at the time of his death he left surviving him his widow, Mary E. Parker and several children including May Parker Adkins, mother of the minor plaintiffs in this suit and wife of Robert A. Adkins after the death of John T. Parker and during the year 1920, May Parker Adkins died, leaving surviving her, her husband, commonly called Bob Adkins, and the said two minor children, plaintiffs herein; that thereafter the partition suit hereinbefore referred to was instituted; in this suit the minor children of May Parker Adkins, plaintiffs herein, were made defendants, but Bob Adkins, her husband, and the father of said plaintiffs, was not for some reason made a party to the suit; upon the hearing of the cause, partition was ordered, the land was sold, sheriff's report filed and the sale was approved by the circuit court; while the money derived from said partition sale was yet in the hands of the sheriff, three attachment suits were instituted against the said Bob Adkins, husband of May Parker Adkins, and the sheriff was summoned as garnishee; interrogatories were filed and upon due hearing judgment was rendered against the sheriff as...