100 Mo. App. 133 | Mo. Ct. App. | 1903
In an action then pending in the circuit court of the city of St. Louis, on April 23, 1894, the respondent, Ada Pannell, was awarded a decree of divorce from appellant, Charles F. Pannell, with alimony at the rate of $35 per month. On March 16, 1899, appellant filed in the Federal court a voluntary petition in bankruptcy and included in the schedule of his liabilities accompanying it as an indebtedness to respondent, arrears of alimony aggregating $2,094. On April 3, 1899, appellant obtained from respondent her signature to the following paper:
“Now at this day comes Ada L. .Pannell and acknowledges satisfaction of judgment in the above entitled cause.
“Witness, W. C. Jones.
(Signed) “Ada L. Pannell.”
This acknowledgment of satisfaction was presented to the circuit court by the attorney of appellant and an entry of record made in the following- language:
“Now comes plaintiff by attorney and here in open court acknowledges to have received full and complete satisfaction of the judgment heretofore entered herein. "
On March 6, 1901, respondent filed a motion to set aside such entry of satisfaction, reciting as follows:
*135 “Now comes the > plaintiff in the above-entitled canse, and moves the court to set aside and for naught hold the entry of satisfaction of judgment heretofore, to-wit, on April 3,1899, entered upon the records in said cause for the following reasons:
“1. Said judgment was not in fact satisfied.
“2. The acknowledgment of satisfaction procured by the defendant from the plaintiff was without any consideration whatever.
“3. Said acknowledgment .of satisfaction obtained from the plaintiff as aforesaid was not sufficient in law to authorize the entry of satisfaction made herein.
“4. Said entry of satisfaction was not made in any of the manners prescribed by the statute in such cases made and provided, and for that reason was illegal and void.
“5. The writing filed herein, acknowledging satisfaction of the judgment, was obtained from plaintiff by defendant through the defendant’s false and fraudulent representations; that said writing was for the purpose, and only to-be used for the purpose of enabling the defendant to secure- a discharge in bankruptcy in the voluntary bankruptcy proceedings which he had instituted in the United States District Court for the eastern district of the State of Missouri, and for no other purpose, and that said writing would not diminish the plaintiff’s rights and claims upon the defendant herein, but that in fact the defendant would do more for the plaintiff than the order allowing alimony required of him. The plaintiff shows that she was ignorant and unadvised as to- the legal effects of her said writing signed by her as aforesaid; that she had no counsel to advise her, and that she was persuaded by the said defendant to go with him to his attorney and advisor; that it was unnecessary for her to consult a lawyer in the- premises; that his attorney would protect her rights and that his attorney had advised him that her rights would not be impaired by signing the acknowledgment of satisfac*136 tion aforesaid; that said acknowledgment was prepared by the attorney for the defendant and presented' to her for her signature in the office of defendant’s counsel and there signed by her upon the false and fraudulent representations aforesaid.
“Wherefore, the premises considered, plaintiff prays that the-entry of satisfaction heretofore made as aforesaid be vacated and for naught held, and that execution issue against defendant herein to enforce the decree of the court heretofore rendered in this cause, allowing plaintiff the sum of $35 per month as alimony.”
On November 4, 1901, after hearing testimony, the court sustained plaintiff’s motion and ordered that the entry of satisfaction be set aside and vacated, and after proper steps defendant has appealed to this court.
The argument in print on behalf of appellant presents numerous points and authorities in support, but in the oral argument his counsel confined the discussion to the question whether fraud had been perpetrated by appellant upon respondent in obtaining her signature to the release or satisfaction, which he stated was the only material question in the ease.
The testimony at the hearing below on the part of respondent tended to show that but an insignificant part of the alimony had been paid; that appellant had importuned her frequently to sign a paper in regard to his bánkruptcy proceeding; that he had represented to her that it would be necessary for her to sign an acknowledgment of satisfaction in order that he might be adjudged a bankrupt; that he had assured her that he would be in a better position to provide for her and that her signing the satisfaction of judgment would in nowise affect her right to alimony.
After several conversations he finally induced her to accompany him to the office of his attorney, dissuading her from first consulting her own attorney, assigning as reason that the paper she signed was only a matter of form and that there was no occasion for her to
Appellant in his testimony upon the motion denied the version of respondent regarding her signature to the paper, and disclaimed any representations or statements to induce her action, except a promise to buy some household furniture, and he sought to establish by the purchase of household furniture shortly before the satisfaction was obtained, an independent and new consideration for its execution. But in addition to the fact that the furniture did not exceed four hundred dollars in cost and therefore would have been inadequate, the testimony further established that appellant caused the purchase to be made in the name of their son, Fred Pannell, and not in the name of his former wife, and that the latter paid the first installment of fifty dollars on the purchase, price.
The appellant was contradicted on substantial questions at the hearing by every witness who was examined on material matters, including as well the furniture dealer from whom the furniture was purchased, and who was examined on appellant’s behalf.
The ruling of the circuit court in granting the order to vacate the record entry of satisfaction finds abundant support in the testimony and is sustained by the preponderance of testimony upon the issue of fraud in obtaining respondent’s signature, conceded by counsel for appellant to be the dominant feature presented, and it is, therefore, needless to discuss other reasons assigned by respondent for the correctness of the lower court’s action and the judgment herein is accordingly affirmed.
