White v. Hutton

Citation240 S.W.2d 193
Decision Date30 April 1951
Docket NumberNo. 21608,21608
PartiesWHITE v. HUTTON, Sheriff.
CourtCourt of Appeal of Missouri (US)

M. E. Ford, L. L. Livengood, Maryville, for petitioner.

John J. Robison, Maysville, for respondent.

DEW, Presiding Judge.

This is a proceeding in habeas corpus instituted in this court. Petitioner was adjudged in contempt by the Probate Court of DeKalb County, Missouri, for failing to comply with a judgment in a proceeding to discover assets of an estate, and ordered confined in jail until the petitioner deliver to the adminstratrix of the estate of petitioner's father the sum of $2,000.00 in cash, or until otherwise ordered released by the order of a court of proper jurisdiction.

On March 15, 1947, Hollis C. White, father of petitioner, died, a resident of DeKalb County, Missouri, after which his daughter Lydia Cleveland was appointed administratrix. The administratrix filed in the Probate Court her affidavit dated March 5, 1951, alleging that she has good cause to believe and does believe that Hollis Newcomb White in the state and county aforesaid has concealed or is otherwise wrongfully withholding certain property of the estate of the deceased, being particularly $2,000.00 in cash and currency; that said property is now in the possession of Hollis Newcomb White or under his control, and should be recovered for the estate of said deceased, and said Hollis Newcomb White should be cited and compelled to appear before the court and caused to answer such questions as may be propounded to him concerning such concealment or unlawful withholding of such property. The court thereupon issued its citation to the petitioner Hollis Newcomb White to appear before said court within the time fixed, and to answer such interrogatories as may be propounded 'touching the concealment and possession of certain personal property described in the affidavit * * *'. The interrogatories were attached to the citation and served on the petitioner. Ten interrogatories were propounded as follows:

'1--At the time of the death of the deceased was he not the owner of $2,000.00 in currency and cash which has been delivered to you for safekeeping?

'2--Did you have in your possession at the time of the death of the deceased $2,000.00, which was the property of and belonged to the deceased?

'3--Did not the deceased deliver to you on October 21, 1945 the sum of $2,000.00 in cash and currency for the purpose of you keeping the same for the deceased?

'4--Did you not deliver to the deceased a receipt in writing at Union Star, Missouri, signed by you in which you acknowledged the receipt of $2,000.00 in cash you had received from the said H. C. White for safe keeping?

'5--Did you not deliver to the deceased on October 21, 1945, at Union Star, Missouri, a receipt which you signed, acknowledging you have received the sum of $2,000.00 in cash from the deceased?

'6--If your answer to Interrogatory 6 above is 'Yes' was not said property delivered to you by the deceased for the purpose for you to safely to keep same for deceased?

'7--If your answer to Interrogatory No. 5, be in the affirmative and your answer to No. 6 above be in the negative what was the purpose of said receipt and why was it executed to you?

'8--Did you receive the sum of $2,000.00 from H. C. White, the deceased on October 21st, 1945, which was the property of the deceased?

'9--Did you in the lifetime of the deceased deliver back to the deceased $2,000.00 you so received if your answer to Interrogatory No. 8 be in the affirmative?

'10--Do you now have in your possession $2,000.00 in curre cny and or cash which was delivered to you and owned by H. C. White, on October 21, 1945?'

The petitioner filed his verified answer to the interrogatories, answering 'No' to all except 6 and 7, to which his answer was 'No answer required'.

Judgment was entered on December 28, 1949, reciting the appearance of all parties, the waiver of a jury and that hearing had been had, and the taking of the cause under advisement by the court, and that on February 8, 1950, the court having had the same under advisement and being well advised in the premises, and having reviewed same, finds that the said H. N. White 'has concealed, and now unlawfully is withholding the sum of $2,000.00 in cash which was the property of H. C. White in his lifetime and belongs to his estate. It Is Therefore ordered and adjudged that the said H. N. White, forthwith deliver to Lydia L. Cleveland, Administratrix, said sum of $2,000.00, and that the Administratrix have and recover of and from said H. N. White her costs and charges'. The record next shows the following Order of Commitment:

'Now on this day comes the above named Administratrix in said estate and files her Petition praying for the attachment of the person of the said Hollis Newcomb White for failure to comply with the Judgment of this Court rendered on February 8, 1950, wherein the said Hollis Newcomb White was found to have concealed and was unlawfully withholding assets of the above estate, being $2,000.00 in cash, which was the property of the said H. C. White in his lifetime and belonged to said estate.

'Said Petition is taken up and found to be in proper form and evidence heard thereon, and the court finds that after a hearing in said Court on December 28, 1949, that the Court on February 8, 1950, entered a Judgment and finding against said Hollis Newcomb White adjudging him guilty of concealing and withholding $2,000.00 in cash, which was the property of the said H. C. White in his lifetime and then belonging to said estate, and that under said Judgment and Order, the Court as a part thereof directed the said Hollis Newcomb White to forthwith deliver to the said Lydia Cleveland, Administratrix, said property, and the Court further finds that the said Hollis Newcomb White has failed to comply with said Order and Judgment and has refused and is now refusing to so deliver said property, and that by reason thereof, he is, therefore, adjudged guilty of contempt of Court for such failure and refusal as provided by law, and the Court further finds from the records of said Court that the Judgment so rendered on February 8, 1950, being unappealed from, is now a Final Judgment.

'It is, therefore, ordered that the said Hollis Newcomb White be committed to the County Jail of the County of DeKalb and State of Missouri, and there kept in confinement until he delivers to the said Administratrix the property, to-wit: $2,000.00 in cash, or until otherwise ordered released by the order of a Court of proper jurisdiction.

'And it is, therefore, further ordered that a copy of this Judgment and Order of Commitment be delivered to the Sheriff of DeKalb County, Missouri, and that he execute the commitment of the said Hollis Newcomb White as provided by this Order and make due return thereof to this Court.

(S) Kirkpatrick Fitzgerald (Seal)'

The proceedings were begun under Sections 63 to 66, inclusive, R.S.Mo. 1939, R.S.1949, Secs. 462.400 to 462.430, the purpose of which is for the discovery and collection of assets belonging to the estate of a deceased person. Section 63 provides for an affidavit to be filed in the Probate Court by the representative of the estate or anyone interested therein to the effect that the affiant has good cause to believe and does believe 'that any person has concealed or embezzled, or is otherwise wrongfully withholding any goods, chattels, money, books, papers or evidences of debt of the deecased, and has them in his possession or under his control,' and upon the filing thereof the court may cite such person to appear before it and may compel attendance by attachment.

Section 64 provides that if such party does not admit the allegations of the affidavit he may be examined under oath along with other witnesses for and against such party provided there have been interrogatories filed in writing to be answered in writing by the party or parties cited.

Section 65 provides that if such person cited refuse to answer proper interrogatories, the court may commit him to jail until he answer or be discharged in due course of law.

Section 66 provides that the issues determined by the interrogatories and the answers thereto shall be tried by a jury unless waived, and if waived, then by the court 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'.

In the petitioner's application for a writ of habeas corpus he attaches the pleadings and record of the hearing, together with the interrogatories, the judgment, citation and commitment, and alleges that his imprisonment is unlawful for the reason that the judgment is illegal and void and rendered without warrant or authority of law; that no specific personal property was described in the affidavit or alleged to be concealed or withheld; that the judgment did not find that the petitioner had concealed any specific personal property, nor did the affidavit allege nor the judgment find that the petitioner now has or at the time of the filing of the affidavit, or at the date of the judgment had in his possession or under his control any specific personal property belonging to the estate of the deceased; that no issues are made by the pleadings; that if any issue is joined it is simply an action on debt for money had and received and the judgment is not responsive to any issue attempted to be raised by the pleadings, and that the purported judgment is in substance a money judgment but purports to be a judgment for specific personal property and is therefore void; that the judgment is beyond the scope of the pleadings, beyond the findings of fact, without the jurisdiction of the court and unwarranted by the pleadings and the evidence and therefore a...

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18 cases
  • Ex parte Ryan
    • United States
    • Missouri Court of Appeals
    • 6 d4 Novembro d4 1980
    ...While §§ 476.110 to 476.150 deal with criminal contempt, they have been frequently cited as applicable to civil contempt.6White v. Hutton, 240 S.W.2d 193 (Mo.App.1951); Ex parte Harris, 286 S.W. 401 (Mo.App.1926); Ex parte Devoy, 208 Mo.App. 550, 236 S.W. 1070 (1921). Although it is not the......
  • G v. Souder
    • United States
    • Missouri Court of Appeals
    • 23 d3 Outubro d3 1957
    ...244 S.W.2d loc. cit. 1011. And, see Sections 476.140 and 476.110(3); Novak v. Weismantel, Mo.App., 261 S.W.2d 491, 493; White v. Hutton, Mo.App., 240 S.W.2d 193, 200(9). ...
  • Freeman v. Heiman, 681-69.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 28 d4 Maio d4 1970
    ...for a debt. The Oklahoma courts have not construed the statute. Heiman relies upon the Missouri decisions of White v. Hutton, 240 S.W.2d 193 (Mo.App., 1951), and Ex Parte Fowler, 310 Mo. 339, 275 S.W. 529 (1925), which vacated findings of contempt for failure to pay amounts of money due rep......
  • Ex parte Miles
    • United States
    • Missouri Court of Appeals
    • 11 d4 Agosto d4 1966
    ...Osborne v. Purdome, Mo., 244 S.W.2d 1005, 1011, 29 A.L.R.2d 1141; G_ _ v. Souder, Mo.App., 305 S.W.2d 883, 887 (7, 8); White v. Hutton, Mo.App., 240 S.W.2d 193, 200(9); Ex parte Heffron, 179 Mo.App. 639, 651, 162 S.W. 652, 656. We must construe the commitment strictly in favor of the petiti......
  • Request a trial to view additional results

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