Carthage Stone Co. v. Gerst

223 S.W. 762, 204 Mo. App. 486, 1920 Mo. App. LEXIS 55

• Court: Missouri Court of Appeals
• Decided: June 17, 1920
• Status: Published

Opinion

BECKER, J.

On January 14, 1915, a writ of fieri facias was issued by the circuit court of St. Louis, Missouri, in the case of Carthage Stone Company,' a. corporation, plaintiff, v, Cornelius H. Pickel and Christian Kaechle, defendants, and on January 30,1915', the sheriff of the city of St. Louis made his return, that he had executed said writ by levying upon and seizing all the right, title and interest of defendants Cornelius H. Pickel and Christian Kaechle in certain real estate in the city of St. Louis, and that, by order and direction of the attorney for plaintiff, he further executed said writ on the 14th day of January, 1915', by declaring, in writing, to Albert Gerst, administrator of the estate of Clara Pickel, deceased, that he attached in his hands all debts due and owing from him to said defendants, Cornelius H. Pickel and Christian Kaechle, and all goods and moneys, etc., of said defendants, and summoning him, in writing, as garnishee, and that he further executed the writ by) summoning Albert Gerst, administrator of the estate of Clara Pickel, deceased, as garnishee, by declaring to him, in writing, that he summoned him to appear before the circuit court at the return term of said court on the first Monday of the following P'ebruary, to answer such interrogatories as might be exhibited and propounded to him by the plaintiff, and by delivering to said Albert Gerst a notice of such garnishment.

Plaintiff’s interrogatories were filed February 3, 1915, and on February 6, 1915, tbe garnishee filed bis answer, stating be bad the sum of $519.80 belonging to defendant Cornelius H. Piekel. On February 8,1915, tbe court ordered tbe garnisbee to pay tbe sum in bis bands into court, and on tbe same day tbe sum of $519.80 was paid into court by said garnisbee. On February 9, 1915, tbe court ordered tbe clerk to pay to tbe plaintiff or its attorney of record tbe fund of $519.80, less $15, for an allowance to tbe garnisbee for answering, and the- costsi of the proceeding, and on February 15, 1915, tbe attorneys for the plaintiff, were paid $499.95, and tbe clerk was paid $19.85 for costs.

On the 8th day of March, 1915 (and more than four days after tbe judgment ordering the clerk to pay the money as aforesaid), Ella Piekel, guardian and curatrix of Cornelius H. Piekel, filed a so-called “interplea” in tbe circuit court, which recites that on February 16, 1915 (the day following tbe day of payment of tbe money by tbe clerk of the court to plaintiff’s attorneys), Cornelius! H. Piekel had been duly declared non compos mentis, and that tbe interpleader Ella Piekel was duly appointed as guardian and euratrix of tbe said Cornelius H. Piekel; that she gave bond and duly qualified as such, and states that at tbe time the garnishment proceeding was instituted said Piekel was a citizen and resident of tbe State of Missouri and a married man and the bead of a family and as such entitled to certain exemptions under tbe laws of Missouri, and that by reason of tbe fact that be was of unsound mind at tbe date the garnishment proceeding was instituted and continuously ever since, though be was not declared of unsound mind until the 16th day of February, 1915, that said Pickel’s exemption claim “had not been and could not be made by him.” Said “interplea” concludes with tbe following prayer:

“Wherefore interpleader prays that this Honorable Court will make an order on said Collins, Barker & Britton, Attorney for said Carthage Stone Com- pa.ny, requiring said Carthage Stone Company or said Collins, Barker & Britton to pay into court for the use of interpleader as guardian and curatrix of said Cornelius II. Pickel the sum of $300 out of the amounts realized by plaintiff from the sale of such real estate and from the amount received from such garnishee as the legal exemptions of- said Cornelius H. Pickel according to the statutes in such cases made and provided and for such other and further orders and relief as to the court may seem meet and proper in the premises together -with the costs of this proceeding.”

A motion to strike this so-called'interplea from the files was filed by the plaintiff on March 231, 1915, which motion the court, on April 26, 1915, overruled. An answer was then ,led by plaintiff and later withdrawn by leave of court on February 16, 1917, and on the same day a demurrer to. the ‘ ‘interplea” was ¡filled by plaintiff below, respondent here, Which demurrer was submitted to and sustained by the court on May 14, 1917.

After a motion to set aside the order sustaining plaintiff’s demurrer had been overruled and an affidavit for appeal filed, and withdrawn by the “interpleader,” judgment was entered for plaintiff on its demurrer, on October 23, 1917.

Finally, on November 30, 1917, affidavit for appeal was filed by the “interpleader,” and an appeal granted the “interpleader” to this court.

The action of the learned trial court in sustaining plaintiff’s demurrer to the so-called “interplea” must be sustained. Said “interplea” contains an averment that, “long before the institution of 'the- above entitled garnishment proceeding said Pickel had been placed in an asylum for the care, custody and treatment of the insane and his liberty of action taken from him, ’ ’ and it further appears therein that said Pickel was not however duly adjudged insane and a guardian appointed for him until •after the fund paid into court by the garnishee had been paid plaintiff and until after the sheriff had in point pf fact made sale of said Pickel ’§ interest in the real estate. In this state of fact's it follows, nnder the authority of First National Bank of Monett v. Morkamp, 130 Mo. App. 118, 108 S. W. 1085 (see also Martin v. Barnett, 158 Mo. App. 375, 138 S. W. 538) that Ella Pickel, wife of said Cornelius II. Pickel, by virtue of section 2185 Revised Statutes of Missouri, 1909, became the proper party to claim, select and hold the exemptions allowed Pickel under the statutes as the head of a family. But said Ella Pickel failed to malee any claim for exemptions as provided by our statutes. We know of no authority and have been cited none, authorizing the procedure attempted by the so-called ‘ ‘ interplea. ’ ’

It follows that the judgment is affirmed.

Reynolds, P. J., and Allen, J., concur.