Zeitinger v. Mitchell
| Decision Date | 10 December 1951 |
| Docket Number | No. 42318,No. 1,42318,1 |
| Citation | 244 S.W.2d 91 |
| Parties | ZEITINGER v. MITCHELL et al |
| Court | Missouri Supreme Court |
Frank Mashak, Irwin Walker, St. Louis, for appellant.
James E. Crowe, City Counselor, John P. McCammon, Associate City Counselor, and John J. Shanahan, Asst. City Counselor, all of St. Louis, for respondents.
Ferdinand C. Zeitinger (plaintiff-appellant) appealed from the order of the circuit court sustaining the three motions filed by the various defendants for a directed verdict, entered at the close of plaintiff's evidence, in an action wherein the latter sought $20,000 damages for an alleged false arrest and imprisonment alleged to have occurred in February, 1946. The defendants Mitchell, Siebels and Scism were members of the police force in the city of St. Louis; defendant Schlater was sheriff of Wayne County, Missouri, and defendant Schultz was administrator of the estate of Anna E. Jacobs, which was then in the process of administration in the probate court of Wayne County, and was a resident of that county.
These facts appear. Anna E. Jacobs died in Wayne County on November 20, 1941. Defendant Schultz was appointed administrator of her estate. On January 8, 1943 Schultz, as administrator, filed in the probate court his statutory affidavit stating that Ferdinand C. Zeitinger, a resident of the City of St. Louis, Missouri, had concealed and was wrongfully withholding $608.97, the property of decedent Anna E. Jacobs at the time of her death; that at the time of the filing of the affidavit said money was in the possession of Zeitinger or under his control; and asked that Zeitinger be cited, summoned and compelled to appear in the probate court to answer interrogatories concerning such concealing and wrongful withholding of said money from said estate. Plaintiff Zeitinger was thereupon duly cited and summoned but did not appear in the probate court of Wayne County on January 25, 1943, the day he was cited to appear. The probate court thereupon issued its order and writ of attachment to the Wayne County sheriff. Upon that writ plaintiff was brought before said probate court of Wayne County. Interrogatories were filed in the matter and upon the trial in the probate court of the issues made by such interrogatories and the answers thereto, in which testimony was heard thereon, there was a finding against the administrator.
The administrator thereupon appealed to the circuit court of Wayne County and upon the trial there de novo on April 5, 1944, the jury found 'Fred C. Zeitinger guilty of wrongfully withholding the sum of $608.97 of money belonging to the estate of Anna E. Jacobs, deceased.' Judgment was thereupon entered that Fred C. Zeitinger was wrongfully withholding said money; 'and was withholding said money at the date of the filing of the complaint and the citation in the probate court of Wayne County, Missouri, on which the proceedings herein are based, therefore the Court finds that said Fred C. Zeitinger, was so wrongfully withholding and is now wrongfully withholding said money in said sum, which was the property of Anna E. Jacobs, deceased'; and therein ordered Zeitinger to forthwith pay to the administrator said money so wrongfully withheld from the estate. Thereupon Zeitinger duly appealed to the Springfield Court of Appeals. On June 26, 1945, that appellate court affirmed the judgment of the Wayne County circuit court. See In re Jacobs' Estate (Schultz v. Zeitinger), 238 Mo.App. 833, 188 S.W.2d 956. After the mandate of the Court of Appeals was filed in the circuit court, the latter court filed its transcript, certificate, mandate and judgment in the Wayne County probate court that Zeitinger was guilty of wrongfully withholding said money from said estate. Upon that mandate the probate court duly entered its findings and order that Zeitinger deliver such money, the property of said estate, to the administrator Schultz. But Zeitinger monetheless thereafter continued to wrongfully withhold said money from said estate.
Thereafter, on February 4, 1946, the matter regularly came on again for hearing in the probate court of Wayne County, upon complaint that Zeitinger had not paid to the estate the $608.97, and thereafter that court entered therein its judgment and order, and thereupon issued its attachment and commitment, fully reciting in both its judgment and commitment in detail all the various steps, required findings and circumstances. After finding in that judgment that Zeitinger was still wrongfully withholding the money, and that he was therefore in contempt under what is now Section 462.430, references are to RSMo 1949, unless otherwise specified, it was ordered therein that attachment and commitment issue, and that plaintiff be committed to the common jail of Wayne County until such contempt was purged by the payment of the sum so wrongfully withheld, and costs. Neither that judgment nor that commitment are here attacked.
Plaintiff's instant petition charged that on February 7, 1946, he was unlawfully arrested in St. Louis upon the above mentioned attachment and commitment of the probate court, and through the action of the defendant St. Louis police officers Mitchell, Siebels and Scism, and the defendant sheriff Schlater, and was transported by Schlater to Wayne County and there placed in jail. Thereafter on February 9, 1946, plaintiff purged the contempt by the payment of the money adjudged to have been wrongfully withheld from the Anna E. Jacobs Estate, and the costs. Plaintiff instantly alleges that his arrest and confinement in jail in February, 1946, after the adjudication of contempt and upon the above order of attachment and commitment issued by the Wayne County probate court, was unlawful.
In the instant case plaintiff, in part, testified:
estate after she died? A. I collected a mortgage from Gieselman.
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With respect to the circumstances under which he finally turned that $608.97 over to the estate, after he had been committed to jail in Wayne County, plaintiff testified:
'
'
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Plaintiff here admitted that at one time he received $3606.36, and that another time he received $2800, all the property of and belonging to the Anna E. Jacobs Estate. He thereafter converted a portion of those funds into a cashier's check and thereby remitted $5800 to Mr. Schultz, the administrator. He admitted that he withheld $608.97 of the funds belonging to the Anna E. Jacobs estate; that those funds remained in his possession and that he did not turn them over to the administrator of the Jocobs estate. As to that $608.97 there was a final and legal adjudication that such funds were in Zeitinger's possession and were wrongfully withheld by him.
Our statutes concerning the discovery and recovery of assets of estates in the probate court are remedial and procedural. We notice them in detail.
Section 462.410 provides for the filing of interrogatories, the answers thereto and the examination of witnesses under oath in the event the party cited does not admit the allegations of the affidavit mentioned in Section 462.400. And Section 462.420 provides that upon refusal to answer proper interrogatories such person cited may be committed to jail until he makes answer or is discharged.
The statute which authorizes a finding of contempt, the issuance of an attachment and...
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