Sternberg v. Levy

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1114,159 Mo. 617
• Parties: STERNBERG, Appellant, v. LEVY
• Court: Missouri Supreme Court

60 S.W. 1114

159 Mo. 617

STERNBERG, Appellant, v. LEVY

Supreme Court of Missouri, First Division

February 12, 1901

Transferred from St. Louis Court of Appeals.

Circuit court judgment affirmed.

Clopton & Trembley for appellant.

(1) As against plaintiff, an existing creditor, Joseph Levy had no legal right to pay assessments for the purpose of keeping a beneficiary certificate in force for the benefit of his adult sister. The payments made by him for that purpose after he became insolvent were presumably fraudulent as against plaintiff, an existing creditor. Snyder v. Free, 114 Mo. 360; Insurance Co. v. Sandfelder, 9 Mo.App. 285; Hoffman v. Nolte, 127 Mo. 120. (2) In as much as $ 290 of the $ 569 paid by Joseph Levy to keep the certificate in force was paid after he became insolvent and with money which should have gone to plaintiff as his creditor plaintiff is entitled under the law and the facts disclosed by the first count of plaintiff's interplea to 290/569 of the proceeds of the certificate or $ 2,038.66. Pullis v Robison, 73 Mo. 201. (3) The second count of plaintiff's interplea sets forth good grounds why such portion of the proceeds of the certificate in question as might otherwise go to Pauline Levy, should be turned over to plaintiff. Eyermann v. Krieckhaus, 7 Mo.App. 455; Strauss v. Ayers, 34 Mo.App. 248; Epstein v. Clothing Co., 67 Mo.App. 221. (4) The special bill of exceptions filed covers only the action of the court in striking out a part of plaintiff's interplea. No motion for new trial, or in arrest, was filed by plaintiff after Pauline Levy's motion for decree on the pleadings was sustained. This court, however, will review the action of the trial court in rendering a decree for Pauline Levy because errors, if any were committed by the trial court in so doing, arise on the record and such motions were not necessary. Funkhouser v. Mallen, 62 Mo. 555; Bagbee v. Emberson, 79 Mo. 139; Swaggard v. Hancock, 25 Mo.App. 596; Baner v. Barnett, 46 Mo.App. 654.

W. C. & J. C. Jones and Giles Filley Jones for respondent.

(1) This court can not consider the alleged error of the trial court in striking out part of the interplea of appellant. Bevin v. Powell, 11 Mo.App. 216; Hubbard v. Misenberry, 32 Mo.App. 459; Baleson v. Clark, 37 Mo. 31; State v. Gee, 79 Mo. 313; In re Gardner, 41 Mo.App. 589; Mockler v. Skellett, 36 Mo.App. 174; Swaggard v. Hancock, 25 Mo.App. 604. (2) The certificate in question was effected without fraud and valid, when taken out, and must remain so as long as the assessments are paid in full. Pullis v. Robison, 5 Mo.App. 448. (3) The interpleader is not entitled to recover assessments paid by deceased while insolvent. Bank v. Hume, 128 U.S. 195; Ins. Co. v. Burroughs, 34 Conn. 305; Burroughs v. Ins. Co., 97 Mass. 359; Unity v. Dugan, 118 Mass. 219; Ashby v. Costin, 21 Q. B. 401; Bacon on Ben. Soc., 312. (4) Interpleader can not recover at all, for the Western Commercial Travelers Association, one of the original defendants herein, is a fraternal beneficial society, organized under Revised Statutes 1879, section 972, and the funds accumulated by such societies are limited to certain classes of beneficiaries, among which persons in the position of interpleader are not included. Knights of Honor v. Nairn, 60 Mich. 44; Legion of Honor v. Perry, 140 Mass. 580; Daniels v. Pratt, 143 Mass. 216; Duval v. Goodson, 79 Ken. 224; Aid Ass'n v. Gonser, 43 Ohio St. 1; State v. Ass'n, 29 Ohio St. 399; Wagner v. Society, 70 Mo.App. 161; Ben. Soc. v. Bunch, 109 Mo. 560; Bacon Ben. Soc. (2 Ed.), sec. 312; Hysinger v. Sup. Lodge, 42 Mo.App. 627; Keener v. G. L., 38 Mo.App. 533; Fenn v. Lewis, 10 Mo.App. 478. (5) Interpleader can not recover in this case for the further reason that under no circumstances could the funds payable upon the death of the member have been made payable to his estate, and thus have become liable for his debts. Keener v. Grand Lodge, 38 Mo.App. 543; Unity v. Dugan, 118 Mass. 219; Fenn v. Lewis, 10 Mo.App. 481; Daniels v. Pratt. 143 Mass. 216.

OPINION

MARSHALL, J.

This is an interpleader between the plaintiff, as a judgment creditor of Joseph Levy, and the defendant, as the sister of Joseph Levy, for $ 2,500, benefits payable by the Western Commercial Travelers Association, upon the death of Joseph Levy, to Pauline Levy, his sister. There was a judgment in favor of Pauline Levy in the St. Louis Circuit Court. Plaintiff appealed to the St. Louis Court of Appeals, where the judgment of the circuit court was reversed and the cause remanded to the circuit court with directions to enter a judgment for the plaintiff for the amount of his claim. Biggs, J., dissented, and certified that the judgment was in conflict with controlling decisions, stated, of this court, and thereupon the cause was transferred to this court under section 6 of the amendment of 1884. It is therefore our duty to hear and determine the cause as if this court had original jurisdiction of this appeal.

The Western Commercial Travelers Association is a corporation organized under article 10, chapter 42, Revised Statutes 1889, relating to the benevolent, fraternal-beneficial companies. Under its by-laws four thousand dollars is paid upon the death of a member to the beneficiary named in his certificate, or failing such beneficiary, to the heirs of the member. On the thirty-first of December, 1880, Joseph Levy became a member and designated his sister, Pauline Levy, as his beneficiary. He was then solvent and continued so until 1891. During these eleven years he paid $ 279 in contributions to the death fund. In 1891 he failed and the plaintiff and others obtained judgments against him. After 1891 and until his death on the sixteenth of December, 1897, Levy paid $ 290 in contributions to the death fund. Upon his death the plaintiff brought suit against his beneficiary, Pauline Levy, and the association, seeking to have the $ 4,000 applied to the payment of plaintiff's judgment against Levy. Upon a stipulation between plaintiff and defendant the association paid the $ 4,000 into court and was discharged; the sum of $ 100 was allowed to the attorneys of the association for services; the court ordered $ 1,400 paid to Pauline Levy and that the plaintiff and defendant interplead for the $ 2,500, which they did.

Pauline Levy's interplea sets out the character of the association, its by-laws, etc., above referred to, the fact that she is the beneficiary named in the certificate, the death of her brother, and prays judgment.

The plaintiff's interplea sets out the same general facts, with the additional allegation as to the recovery of judgments aforesaid, the payment of the $ 279 by Levy while he was solvent, and of the $ 290 after he became insolvent, and then pleads separately the following:

"Further interpleading this interpleader says that after the rendition of said judgments against said Joseph Levy and while he was insolvent, as stated in the first count hereof, the said Joseph Levy, while residing with his said sister Pauline Levy and her children, gave her from his earnings for the shelter, support, maintenance, clothing and other expenses of the said Pauline Levy, and for the shelter, support, maintenance, clothing, education and other incidental expenses of her minor children, large sums of money, to-wit, the sum of at least $ 1,750 per year, aggregating for said six and one-half years intervening between the date of the rendition of said judgments and the date of the death of said Joseph Levy, the sum of at least $ 11,375. That the said sum of money so given to said Pauline Levy was not given her as a contract price for board and accommodation, but was given to her from time to time for the shelter, support, maintenance and other expenses of herself and children, and for the education of her said children as aforesaid, which sum so given to said Pauline Levy during said six and one-half years was at least $ 5,500 in excess of the sum which similar board and accommodations were worth, and for which they could have been procured by the said Joseph Levy for himself individually elsewhere. This interpleader further states that the said Pauline Levy has spent the said sums of money so given her by the said Joseph Levy. That the said Pauline Levy is now insolvent and this interpleader can not, by garnishment or other proceedings at law against said Pauline Levy, compel her to satisfy this interpleader's said judgments out of the moneys so given her by the said Joseph Levy in fraud of his said creditors as aforesaid."

Pauline Levy moved to strike out of plaintiff's interplea the matter specifically quoted, as surplusage, irrelevant, immaterial, and, if true, having no bearing on the claim of either party to the fund in controversy. The court sustained this motion on the fourth of April, 1898. Plaintiff filed a motion to vacate the order sustaining said motion on the eighth of April, 1898. In the transcript certified by the clerk there is a statement by the clerk that both parties then filed motions for judgment on the interpleas as they stood, but no such motions appear in the transcript or appear to have been made a part of the record by any bill of exceptions, and therefore the recital of the clerk is of no avail (State ex rel. Malin v. Merriam, 159 Mo. 655, 60 S.W. 1112) and no such motions are before us for consideration.

The court, on April 26, 1898, rendered judgment for the defendant. The judgment after reciting the appearance of the parties sets out: "And the several motions of the said parties for judgment upon the pleadings having been submitted to the court and the allegations in the said several interpleas being undenied and admitted, and the court being fully advised of and concerning the premises," etc awarded...