144 Mo. 653 | Mo. | 1898
This is an application, on habeas corpus, for the discharge from imprisonment of the petitioner, Frederick Knaup, committed to the jail of Cole county for contempt, in refusing to obey an order of the circuit court of that county requiring him to deliver to its receiver certain bonds in petitioner’s possession. The facts giving rise to this proceeding have been summarized by counsel as follows:
The Cole circuit court, at its July term, 1897, rendered judgment (on a promissory note) in the sum of $3,073.35 against the Standard Shoe Company and Frederick Knaup, codefendants. An execution was, on August 12 thereafter, sued out by the judgment creditor and against the defendants, returnable to the November term, 1897, of the circuit court, and the same was returned to said term unsatisfied except as to the sum of $189.70, which was realized and applied as a credit on the execution. Afterward, at the November term, 1897, of said court, the execution plaintiff caused the petitioner herein to be examined by the court, under Revised Statutes 1889, section 4971, eb seq., as to his ability and means to satisfy the judg
Afterward, on said November 30, 1897, the execution plaintiff sued out an alias execution against the defendants, and subsequently on the same day the sheriff of Cole county returned the alias execution, his return reciting service of garnishment process on Fred H. Binder, president of the Jefferson City Water Works Company. Thereafter, and on the same day, the execution plaintiff filed in the circuit court his supplemental petition, in which he set forth in substance the rendition of the judgment for $3,073.35 in his favor, the issuance of the original execution thereon and its return unsatisfied except as to the sum of $189.60, the issuance of the alias execution and the service of the garnishment on the waterworks company, the examination of said Frederick Knaup under oath by the court and its finding that he had in his possession and upon his person the bonds as recited by the court in its order, and that they were subject to the payment' of plaintiff’s judgment. Said petition further sets forth that unless Frederick Knaup should be restrained from
In the brief filed herein with the court, by the learned counsel for the petitioner, a most interesting discussion, involving the consideration of questions about which the courts of our country are in much confusion have been presented, such as the authority and power of courts of equity (independent of express statutory enactments conferring it) to compel a debtor, at the instance of a judgment creditor, whose execution at law has proven unavailing, to turn over to the court or a receiver appointed by the court, under the penalty of imprisonment, notes or other personal chattels in his-possession in order that they may be subjected to the satisfaction of the judgment against him; and further as to what is the proper limitation and restriction of a court of equity when invoked as auxiliary to a court of law in the enforcement of its judgments, and other like kindred questions. Also the question as to what extent articles carried or worn about or upon’ the person of an execution debtor are to be held exempt from seizure on execution or attachment. Also an
In the view we take of the facts that lead up to and resulted in the order of imprisonment of-the petitioner by the circuit court, from the force of which he now seeks by this writ his discharge, there will be no occasion to give to this opinion so wide a range of d iscussion as is suggested in the brief of petitioner. While the petitioner was brought before the circuit court of Cole county on an order for his appearance and examination touching his means and ability to pay the judgment against himself and in favor of one of his . judgment creditors, under section 4971, and Revised Statutes 1889, and at that examination he was made to disclose the ownership and whereabouts of the waterworks bonds mentioned above, the order for his imprisonment was not predicated upon the authority of section 4971, but upon sections 5243 of the garnishment act. In the case of State ex rel. v. Barclay, 86 Mo. 55, it was said, though the point was not directly involved in the judgment, that section 2410, Revised Statutes 1879, now section 4971, Revised Statutes 1889, under the chapter on executions, did not authorize the court to go so far as to order the defendant to turn over property to the officer of the court. This obiter expression we regard as the correct view, however, in this State, under that manner of procedure, because when the statute herein confers special power, or when a special method is prescribed for the execution of a given power, this generally forbids the doing of the thing specified in the particular way pointed out by the statute conferring such power. Heidelberger v. St. Francois Co., 100 Mo. 69, and cases cited. Under the provisions of the execution statute, section 4971 (against which the counsel for petitioner have directed
But the circuit court did not rely upon the power and provisions of section 4971 in the making of its final order of commitment against the petitioner, although as above said, it was under that section that
The petitioner further contends that the appointment of the receiver, on the application of the execution creditor, in the garnishment proceedings, was in excess of the rightful power of the court, and for that reason the petitioner was warranted in refusing obedience to the court’s order requiring him to deliver to the receiver the bonds. This contention is untenable. The essence of the order, so far as it concerned petitioner was, that he deliver the bonds in his possession into court to be dealt with according to law. Whether their custodian was to be the clerk of the court, the
This court, in the case of State v. Bockstruck, 136 Mo. 335, in answer to the objection made by the defendant therein that the judgment against him was unauthorized by law, 'in that it required the fine imposed upon him to be paid “to the State of Missouri, for the use of the City of St. Louis,” says: “Inasmuch, however, as there was no necessity for the judgment to specify to what purpose the fine should be applied; inasmuch as without any direction in the
It is further urged that the order committing petitioner to jail was in effect imprisonment for debt,
For these reasons we hold that the petitioner is not entitled to his discharge and hence order that he be remanded to the custody from whence he came, and that the writ be discharged.