White v. Fitzgerald

• Decision Date: 07 December 1953
• Docket Number: No. 21916,21916
• Citation: White v. Fitzgerald, 263 S.W.2d 454 (Mo. App. 1953)
• Parties: WHITE v. FITZGERALD, Judge.
• Court: Missouri Court of Appeals

Page 454

263 S.W.2d 454

WHITE v. FITZGERALD, Judge.

No. 21916.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1953.

M. E. Ford, Gene Thompson, Maryville, for appellant.

Robison & Miller, Maysville, for respondent.

BROADDUS, Judge.

This proceeding is for a writ of prohibition and originated in the Circuit Court. The facts of the case are:

On September 30, 1948, Lydia Cleveland, administratrix of the estate of Hollis C. White, deceased, filed in the Probate Court of DeKalb County, Missouri, an affidavit for discovery of assets. Therein she alleged that petitioner in the instant case, Hollis Newcomb White, has 'concealed or is otherwise wrongfully withholding certain property of said estate, being particularly $2000 in cash and currency; that all the foregoing property is now in the possession of the said Hollis Newcomb White, or under his control, and that the same should be recovered for the estate of said Hollis C. White, deceased; that the said Hollis Newcomb White should be cited and compelled to appear' before the Court and examined under oath concerning such concealment of unlawful withholding of such property.

Thereafter a citation was issued and served upon petitioner, interrogatories were propounded and answered by him, and a hearing thereon was held by the Probate Court. The record recites that a jury was waived, and on February 8, 1950, the Probate Court entered a judgment. That judgment recites and finds 'that said H. N. White (Hollis Newcomb White) has concealed, and now unlawfully is withholding the sum of $2000 in cash, which was the property of H. C. White, deceased, in his lifetime, and belongs to said estate.'

The judgment further ordered that the said Hollis Newcomb White forthwith deliver to the administratrix the sum of $2,000, and that she have and recover from him her costs and charges. No appeal was taken from that judgment.

The Probate Court's order not having been complied with, nor the judgment paid, on January 6, 1951, a commitment was issued ordering that the said Hollis Newcomb White be committed to the DeKalb County Jail for contempt, there to be confined until he complied with the orders of the Probate Court.

Thereafter, the said Hollis Newcomb White sued out a writ of habeas corpus in this Court. We held, White v. Hutton, 240 S.W.2d 193, that the commitment for contempt and that portion of the judgment on which it was founded was without authority of law, and discharged petitioner from custody.

Thereafter, on September 8, 1952, an order was issued by the Probate Court directing the petitioner herein to appear before the Court on November 17, 1952, for supplementary examination as to his ability and means to satisfy the judgment rendered by said Probate Court on February 8, 1950.

On October 1, 1952, petitioner filed a motion in the Probate Court to quash and recall the order issued on September 8, 1952, on the ground that the court was without jurisdiction. His motion was overruled and he then brought the present proceeding in the Circuit Court praying for a writ of prohibition, commanding the Probate Court 'to desist from any further proceedings in said action.'

The Circuit Court refused to issue the writ, and petitioner, Hollis Newcomb White, appeals.

Before taking up petitioner's contention it is, perhaps, well to state that the affidavit to discover assets filed by the administratrix was authorized by Section 462.400 RSMo 1949, V.A.M.S., and in proper form. That section declares that when an affidavit is filed alleging that '* * * any person has concealed or embezzled, or is otherwise, wrongfully withholding any goods, chattels, money, books, papers or evidences of debt of the deceased, and has them in his possession or under his control, the court may cite such person to appear before it, and compel such appearance by attachment.'

As provided by Sec. 462.410, the written interrogatories were filed and were answered. The next step taken was authorized under Sec. 462.430. That section provides for waiver of jury (which was done); then the statute says that the Court shall try the issue in a summary manner and 'judgment shall be rendered according to the finding and for costs, and if convicted, the court shall compel the delivery of the property detained by attachment of his person for contempt, and the court shall commit him to jail until he comply with the order of the court.'

Petitioner, in his brief, states his position as follows: 'The said probate court is now proceeding under and by virtue of Sec. 513.380 et seq. to discover what property Hollis Newcomb White has that would be subject to execution to satisfy a general judgment. The probate court evidently assumes that the purported judgment rendered by it on Feb. 8, 1950, in the proceeding to discover assets was a general money judgment against Hollis Newcomb White and in favor of the estate. It is our contention that the probate court could not render such a judgment and if (it) attempted to do so the court was acting in excess of its jurisdiction.

'Possession of the assets claimed to be a part of the estate at the time of the commencement of the action being one of the requirements of the statute and an essential element of jurisdiction it is necessary that the court find that the party cited to appear did, in fact, have the claimed assets in his possession or under his control at the time of the commencement of the action.

'This court has already ruled that the Probate Court failed to find this essential element of jurisdiction. White v. Hutton, Sheriff, 240 S.W.2d 193.'

Our former opinion recites the facts in this controversy and discusses the statutes and decisions in Missouri under this discovery of assets authorization from the beginning.

On page 201 of 240 S.W.2d of the opinion this language appears:

'Two related questions arose in the course of time under the sections as above amended, and with which we are here concerned. First, could there be any recovery in such proceedings for the value of the detained assets when they had been disposed of by the party charged? Second, can the contempt provisions of the statutes, Sec. 66 (now Sec. 462.430) be imposed for failure to obey the order for delivery of the specific property alleged to have been detained when the property is, in fact, not in the possession or control of the party charged?'

Continuing, the opinion cites Davis...