(273 S.W.)

Where executor had been imprisoned for refusal to turn over to administrator pendente lite, funds which court found to be in his possession or under his control, evidence, on habeas corpus, that he did not have the money in his possession or under his control could not be considered, in view of Rev. St. 1919, § 1910, being contradictory to record, especially where there was no denial in petition of truth of findings.

3. Constitutional law 83(3)-Statute permitting imprisonment for contempt in refusing to deliver property as ordered not unconstitutional.

Rev. St. 1919, §§ 62-65, authorizing attachment as for contempt for refusal to deliver assets of estate of decedent, held not violation of Const. art. 2, § 16, prohibiting imprisonment for debt, which applies only to judgments for money, and not for turning over specific money or property.

lation of law, and that petitioner is not imprisoned for any of the excepted matters. A copy of the commitment is attached to the petition.

The return of the sheriff admits that he has the custody of the petitioner, and alleges that the latter is detained under a commitment issued by the probate court of Jackson county, Mo., a copy of which is attached. There are no other pleadings in the case. The copies of the commitment attached to the petition and to the return are identical." The commitment shows that the petitioner was committed on March 19, 1925, for contempt of court; that on that day an order was entered by the probate court of Jackson county, Mo., finding that the petitioner "has in his possession or under his control the sum of $4,512.94 in money belonging to the said estate of Leavenworth Fowler, deceased, and ordering and requiring said T. A. Fowler to deliver and turn over to Ben R. Estill, administrator pendente lite of said estate, said sum on or before March 2, 1925, or show good and sufficient cause why he should not do so;" that "the said T. A. Fowler has refused and still refuses to comply with said order by failing to show good and sufficient cause why he should not deliver and turn over to said Ben R. Estill, administrator pendente lite, said $4,512.94." The commitment further recites that said refusal "constitutes a willful contempt of this court," and it was commanded therein that the sheriff of Jackson county, Mo., commit the petitioner to the county jail of Jackson county, Mo., there to remain until said sum of $4,512.94 should be delivered and

*

turned over to said administrator.

[1] It is difficult to pass upon this case, Application by Talbot A. Fowler for a writ for the reason that it is apparent that the of habeas corpus against the Sheriff of Jack-petition fails to state all the facts concernson County. Writ quashed, and proceedings dismissed.

Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for petitioner. Cooper & Neel, of Kansas City, for respondent.

BLAND, J. This is an original proceeding in habeas corpus. The petition for the writ alleges that the petitioner is unlawfully deprived of his liberty by the sheriff of Jackson county, Mo., by virtue of an order made by the judge of the probate court of that county, purporting to commit the petitioner to the county jail until he should pay the sum of $4,512.94 to Ben R. Estill, administrator pendente lite of the estate of Leavenworth Fowler, deceased. It is alleged that the order of the probate court was void, as being contrary to section 16 of article 2 of the Constitution of Missouri, prohibiting imprisonment for debt except for the nonpayment of fines and penalties imposed for vio

ing the imprisonment and restraint and the true cause thereof, as provided by section 1877, R. S. 1919. The petition does not allege the character of the proceeding in the probate court out of which the order for the payment of the money grew. For this reason we would be justified in dismissing the writ. State ex rel. v. Dobson, 135 Mo. 1, 36 S. W. 238. Under the provisions of sections 62 to 65, R. S. 1919, providing for the discovery of assets belonging to an estate of a deceased, it is provided that if one is found to have certain assets of the estate in his possession, including money (In re Estate of Huffman, 132 Mo. App. 44, 111 S. W. 848; Dameron's Adm'r v. Dameron, 19 Mo. 317), "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." Petitioner attacks the constitutionality of this statute.

[2] At the hearing of this case in this

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] The petitioner is not restrained in violation of section 16 of article 2 of the Constitution of Missouri, prohibiting imprisonment for debt. This provision of the Constitution applies to judgments for the mere payment of money (see Coughlin, v. Ehlert, 39 Mo. 285; Francis v. Francis, 192 Mo. App. 710, 179 S. W. 975; Ex parte Crenshaw, 80 Mo. 447; Kansas City v. Pengilley, 269 Mo. 59, 189 S. W. 380, L. R. A. 1917B, 551), and not for the turning over of specific money in the possession or control of another. It was stated in Roberts v. Stoner, 18 Mo. 481, 484:

court, we were informed that the money in, for the writ of habeas corpus in the case at controversy came into the hands of the peti- bar. tioner while he was executor of the will of Leavenworth Fowler, deceased; that said will left deceased's property to petitioner and his wife; that a suit having been brought to set aside the will of deceased on the ground of undue influence on the part of the petitioner and his wife, and want of mental capacity of the testator, the probate court removed the petitioner and appointed said Ben R. Estill administrator pendente lite. Over the objection of the respondent, the petitioner was permitted to testify that he did not have the money in controversy in his possession at the time the order was made for him to turn it over to the administrator pendente lite, or at this time, or any money of his own which could be used to pay said administrator pendente lite. He testified that while executor he paid out this money to claimants against the estate without any claims being filed in the probate court, and which that court never ordered to be paid; that $1,000 of the money had been paid on the debts of the petitioner. This testimony was heard subject to the objection of the respondent, and a ruling upon it was reserved. Respondent's evidence shows that the petitioner at no time prior to the commitment assigned such a reason for failure to turn over the money to the administrator | pendente lite, but flat-footedly refused to do so.

The testimony of the petitioner that he did not have the money to turn over to the administrator pendente lite cannot be considered for the reason that to do so would contradict the record of the probate court re

citing that, at the time the order was made,

"It would seem that a sequestration, merely to compel the payment of money, cannot now issue, as imprisonment for debt is abolished. As process against the body, for the nonpayment of a debt, cannot now issue, there would be no means of putting a party in contempt. These remarks are only intended for decrees for the mere payment of money. When the decree is for the performance of acts within the power of a party he may be compelled by sequestration. Such a process may have been proper, if it had been shown that Stoner had the money in his possession and refused to deliver it up." (Ital

ics ours.)

It was said in Re Knaup, 144 Mo. 653, 667, 668, 46 S. W. 151, 154 (66 Am. St. Rep. 435):

"The right to punish for contempt, disobedience to all lawful mandates of a court, is not a mere formal incident to a court, but an inherent power essential to the very existence of a court of record, and granted as a necessary incident in establishing a tribunal as such, the absence of which power in a court would render lifeless and practically ineffectual that great

branch of this, as of all governments. Surely,

for debt shall not be allowed except for the nonpayment of fines and penalties imposed for violation of law.' That is a mere constitutional restriction upon the courts against the enforcement of a given character of judgments against the citizens, but in no sense to be construed as a strike at, or a restriction upon, the exercise of that vital inherent power of the courts to enforce any and all lawful orders by imprisonment for contemptuous disobedience thereof."

the petitioner had "in his possession or unif so essential a power in our courts was to be der his control the sum of $4,512.94 in mon- stricken down, the framers of our Constitution ey belonging to said estate of Leavenworth would have chosen more apt words than those Fowler, deceased." Where the petitioner is contained in section 16 of article 2 of our presrestrained by reason of having been commit-ent Constitution, providing 'that imprisonment ted for civil contempt by a court legally constituted, "no inquiry into the regularity of the proceeding which resulted in a judgment can be had." Section 1910, R. S. 1919; In re Truman, 44 Mo. 181, 185; Stoner v. State, 4 Mo. 614; State ex rel. v. Dobson, supra. The case of Ex parte Howell and In re Ewing, 273 Mo. 96, 200 S. W. 65, cited by the petitioner, involved a criminal or direct contempt. In the case at bar no criminal contempt is in issue but merely a civil contempt. Limerick v. Riback, 204 Mo. App. 321, 324, 224 S. W. 45. Whether a direct contempt is involved we need not say, for even in a criminal or direct contempt the truth of the findings upon which the judgment is based must be denied by the petitioner in his pleading. Ex parte Howell and In re Ewing, supra, loc. cit. 110 (200 S. W.

See, also, Ex parte Haley, 99 Mo. 150, 12 S. W. 667; Ex parte Haley, 37 Mo. App. 562. From what we have said the attack on the constitutionality of section 62-65, R. S. 1919, is unfounded.

The writ is quashed, and the proceedings dismissed.

ARNOLD, J., concurs.

(273 S.W.)

FRANKLIN BANK v. INTERNATIONAL
HOSPITAL EQUIPMENT CO. et al.
(No. 19008.)

(St. Louis Court of Appeals. Missouri. June
2, 1925. Rehearing Denied June 24, 1925.)

1. Bills and notes 442-Action on note grounded on promise to pay and not on indebtedness.

An action on a note is based on promise to pay legal holder as provided therein, and is not grounded on indebtedness.

2. Bills and notes 489 (7)-Failure to prove execution precludes recovery on proof of indebtedness.

The failure to prove execution of a note does not permit recovery on proof of indebtedness, since there would be a variance between pleadings and evidence.

10. Bills and notes 491-Presumed that note delivered and negotiable and given for valuable consideration, where plaintiff in possession, and execution not denied.

Where execution of note is not denied, and plaintiff is in possession of it, presumption is that note was delivered, was negotiable, and that it was given for valuable consideration. 11. Bills and notes 493 (2)-Burden not on plaintiff to prove value received.

Under R. S. 1919, §§ 811 and 2160, a promissory note imports a consideration, and, in suit on note, burden is not on plaintiff to prove value received.

12. Bills and notes ≈489 (6)—Allegation In petition that note contained words "value received" not an allegation that note was given for value received.

Allegation in petition in action on note that note contained the words "value received" is 3. Contracts 346(16) — Suit on debt not not an allegation that note was given for value proven by introduction of note.

A suit on a debt is not proven by introduction of a note, since there would be a variance between pleadings and evidence.

4. Bills and notes 474-Mere denial of Indebtedness not a "general denial."

In action on note, mere denial of indebted

ness does not, in view of Rev. St. 1919, §§ 1256, 1380-1382, constitute a "general denial."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, General Denial.]

5. Bills and notes

475-Denial of indebtedness not denial of execution of note. Denial of indebtedness is not denial of execution of note.

6. Bills and notes 485-General denial, not under oath, not a denial of execution of note. In action on note, even though defendants' answer merely denying indebtedness constituted a general denial, where not under oath, as required by Rev. St. 1919, § 1415, it cannot act as denial of execution of note.

7. Bills and notes 489 (5)-Affirmative defense cannot be legally proven under general denial.

Neither payment, want, or failure of consideration, or any other affirmative defense, can be legally proven under a general denial.

8. Bills and notes 493 (2)-Not incumbent on plaintiff to prove value or consideration. Under Rev. St. 1919, § 2160, in action on note, it is not incumbent on plaintiff to prove value or consideration.

9. Bills and notes 493(2)-A promissory and negotiable note is deemed prima facie to have been issued for valuable consideration.

Where note sued on was promissory and negotiable, under Rev. St. 1919, § 811, it is prima facie deemed to have been issued for valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.

received, and hence note as pleaded prima facie imports valuable consideration, and it was not incumbent on plaintiff to prove it.

13. Pleading 96-Where answer insufficient and same as though defendant filed no pleading at all, it amounts to confession of material allegations of petition.

and case stood as though defendants filed no Where defendants' answer was insufficient, pleading at all, it amounts to confession of material allegations of petition.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by the Franklin Bank against the International Hospital Equipment Company and others. Plaintiff's motion for judgment on the pleadings was sustained, and judgment entered for plaintiff, and defendants appeal. Affirmed.

Hill & England, of St. Louis, for appellants.

Rassieur & Goodwin, of St. Louis, for respondent.

DAVIS, C. This is an action on a promissory note. The defendants filed a joint answer to plaintiff's petition; the plaintiff, after filing a general denial reply, then filed a motion for judgment on the pleadings, which the court sustained, entering judgment thereon for $3,281.96, from which defendants appealed.

Plaintiff's petition, with affidavit and Exhibit A reads:

"Plaintiff states:

"That it is a corporation organized and existing under and by virtue of the laws of the state of Missouri, and as such is engaged in the business of banking in the city of St. Louis, Mo.

"That defendant International Hospital Equipment Company is a manufacturing and business corporation, organized and existing under and by virtue of the laws of the state

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Missouri, and having its principal offices in St. Louis, Mo.

"Further, plaintiff states that on November 2, 1922,

defendant International Hospital Equipment Company executed and delivered to Ruche-Coopersmith Bed Company, a corporation, its certain promissory note (a verified copy of which is hereto attached and made a part of this petition, marked "Exhibit A") of even date, whereby, for value received, it promised to pay to the order of Ruche-Coopersmith Bed Company, 90 days after date, at the Franklin Bank, St. Louis, Mo., the sum of $2,970, with interest from maturity at the rate of 8 per cent. per annum, and if said note should not be paid at maturity and should be placed in the hands of an attorney for collection, it further promised to pay, as attorneys' fees for collection, 10 per cent. additional on the full amount due thereon; demand for payment, protest, and notice of dishonor being waived by all parties thereto.

Exhibit A. (Copy.)

"St. Louis, Mo., Nov. 2, 1922.
$2,970.00. Ninety days after date for value
received I promise to pay to the order of
Ruche-Coopersmith Bed Co. two thousand nine
hundred seventy and no/100 dollars at the
from maturity at the rate of 8 per cent. per
Franklin Bank, St. Louis, Mo., with interest
annum; and if this note shall not be paid at
maturity, and shall be placed in the hands of
an attorney for collection, I further promise
to pay, as attorney's fees for collection, 10
per cent. additional on the full amount due
hereon. Demand for payment, protest,, and
notice of dishonor are hereby waived by all
parties.
"International Hospital Equipment Co.,
"[Address] By J. D. Dean, Pres.
"Attest: G. Carlander, Sec. & Treas.

"No. 210952. Due 1/31. Cash."
On the back of note is following:

"Further, that prior to the delivery of said note by defendant International Hospital Equip-"2/19/23 ment Company to said Ruche-Coopersmith Bed Company, the defendants J. D. Dean and, G. Carlander indorsed their names in writing on the back thereof, in the order stated, and without receiving anything of value therefor, and for the accommodation of said defendant International Hospital Equipment Company.

"That thereafter said Ruche-Coopersmith Bed Company transferred said note by causing its corporate name to be indorsed in writing on the back thereof by R. Coopersmith, president, to the plaintiff, for value, and before maturity thereof, and that plaintiff was now the holder of said note in due course.

"Further, plaintiff says that defendant International Hospital Equipment Company paid upon the principal of said note, and on February 19, 1923, the sum of $200, and has paid all interest due on said note up to and including the 31st day of January, 1923, but that the balance of the principal of said note and all interest from February 1, 1923, has not been paid and is now due.

"Wherefore plaintiff prays judgment against the defendants for the sum of $2,770 and interest thereon at the rate of 8 per cent. per annum from February 1, 1923, until the date of judgment, and for an attorney's fee for collection of 10. per cent. additional on the full amount due on said note, including interest. "State of Missouri, city of St. Louis-ss.:

John H. Sills, being duly sworn, upon his oath states that he is vice president of the foregoing plaintiff, Franklin Bank, and as such has authority to make this affidavit, and further says that the copy of the promissory note charged to have been executed by the defendants, which is attached to the foregoing petition and marked "Exhibit A," is a true copy of the original promissory note charged to have been executed by said defendants, and upon which the foregoing petition is founded. John H. Sills.

"Subscribed and sworn to before me, a notary public within and for the city of St. Louis, Mo., this 13th day of April, 1923.

"My commission expires January 9, 1925. "[Notarial Seal.]

"Mathilda A. Haertgen, "Notary Public in and for the City of St.

$2,970.
200.

$2,770.

"A true copy.

"J. D. Dean.

"G. Carlander.

"Ruche-Coopersmith Bed Co., "R. Coopersmith, Pres.

"Attest: John Schmoll, Clerk."

Defendants then answered as follows:

"Now comes the defendants in the aboveentitled cause, and for their joint answer to the petition of plaintiff deny that they are indebted to plaintiff as in said petition alleged. Wherefore, having fully answered, they pray to be hence dismissed with their costs."

Plaintiff's reply is as follows:

"Now comes the plaintiff, and for its reply to defendants' answer, plaintiff denies each and every allegation in said answer contained. Having fully replied, plaintiff prays for judgment as in its petition."

Plaintiff then filed a motion for judgment on the pleadings, reading:

"Now comes the plaintiff, and moves the court for a judgment upon the pleadings for the reason that the joint answer of the defendants in this action does not deny, either generally or specially, any allegation of the petition; for the further reason that said joint answer does not present any defense to plaintiff's cause of action; and for the further reason that said joint answer is argumentative and without effect as any defense to plaintiff's cause of action."

After the court sustained the motion for judgment on the pleadings and entered judgment thereon, the defendants filed their motion to set aside the judgment, as follows:

"Now come the defendants in the above-entitled cause, and move the court to set aside the judgment rendered herein on the 18th day of January, 1924, and to reinstate said cause for trial, for the,following reasons, to wit:

"First. The action of the court in sustaining

(273 S.W.)

beyond the jurisdiction of the court, in that said pleadings raised issues of fact and entitled defendants to a trial by jury.

"Second. That the action of the court in rendering said judgment under the issues raised is contrary to the provisions of the Constitution, of the laws and the Constitution of the state of Missouri, and deprives the defendants of their property without due process of law. "That under the pleadings said judgment is erroneous and void, and the court was wholly without jurisdiction to entertain said motion and render judgment thereon."

In Spencer v. Turney, 5 Okl. 683, 49 P. (1) On information and belief, he denies the 1012, an excerpt reads: