Saunders v. Hackley & Hume Co. who claimed under these two wills and as or through shareholders, were the rightful distributees; that after the payment of the dividend thus distributed on June 13, 1910, the remaining assets of the defendant consisted of $4,000,000 of real estate in Louisiana, and at the time of the trial the defendant had remaining assets of timber lands in Louisiana of the value of $2,000,000. It was undisputed that at the time of the declaration and distribution of the stockholders' dividend, on June 13, 1910, the managing officers who ordered the same had no knowledge of the claim of plaintiffs, nor was there any evidence of intention on the part of any other officers in any way to hinder, delay or defraud the plaintiffs, the first intimation of whose claim against the defendant was contained in a letter dated August 10, 1910, addressed to "Messrs. Hackley & Hume, Muskegon, Michigan," as follows: "I am informed that you have consummated the sale of the timber land in Vernon Parish, Louisiana, to the Central Coal & Coke Company, in regard to which I began negotiations on your behalf in July, 1907. Our commission for making the sale became due upon its consummation and we hope it is convenient for you to settle with us now. "Your truly, D. C. SAUNDERS." III. In any view of the case no judgment could be rendered against the garnishee unless it appeared that at the time of the service of the writs they Garnishment. were in possession or custody of money or property or effects belonging to the defendant or were indebted to it. The conceded facts are that when the writs of garnishment were levied there was nothing in the hands or possession of either garnishee subject to seizure under said writs unless they were leviable on the liability of the garnishees for the bonds and notes given in payment for the land sold in April, 1910. Both of these forms of indebtedness were of the highest negotiability. Neither were mature. The bonds being payable to bearer were transferrable by delivery and the notes were transferrable by endorsement and delivery. When the garnishment writs were Saunders v. Hackley & Hume Co. served the bonds and notes given to defendant had been transferred and delivered to other persons (the interpleaders). It is not claimed that such transfers were made with any actual intent to defraud, nor with knowledge on the part of the transferrors or transferrees or garnishees of the claim of plaintiffs which was subsequently asserted in the letter quoted herein. In these circumstances the only possible theory upon which such indebtedness could be attached is, that it existed when the debtors were garnished and that the previous transfers thereof by the defendant were voidable against plaintiffs, as attaching creditors, because voluntary and therefore presumptively fraudulent in law as to attaching or judgment creditors. [Clark v. Thias, 173 Mo. 1. c. 652.] Even if it be conceded for the argument that no corporation can turn over its assets to its shareholders, without other consideration than that status, to the prejudice of the claims of its attaching and judgment creditors, still that principal has no application where, as here, the undisputed fact is that the defendant corporation retained other assets at the time of the trial, of the value of two millions of dollars in the form of other real estate owned by it in Louisiana which was subject to no liens or charges and amply sufficient to satisfy plaintiffs' demand and that defendant owed nothing, unless the amount sued for in the principal case shall be established as a debt against it. [Coleman v. Hagey, 252 Mo. l. c. 135; Welch v. Mann, 193 Mo. 304, 324; 12 R. C. L. p. 593.] If, therefore, the distribution by defendant of a portion of its assets arising from a sale of a part of its Louisiana lands was, as to plaintiffs, voluntary, it was not fraudulent in law or voidable under the facts in this record, since the proof was uncontroverted that defendant retained the title to similar lands more than sufficient to pay all the claims of plaintiffs. The burden of proving that fact rested upon and was discharged by the interpleaders (Clark v. Thias, 173 Mo. 1. c. 652.), and hence neither their title nor the indebted State ex rel. Lamkin v. Hackmann. ness of the garnishees, under the circumstances shown on the trial, was charged or affected with any attachment lien in favor of plaintiffs by the service of the writs of garnishment. The ruling of the learned trial judge in sustaining the issue joined under the writs of garnishment between plaintiffs and the garnishees and interpleaders, was correct and is affirmed. It is so ordered. All concur. THE STATE ex rel. UEL W. LAMKIN, Superintendent of Public Schools, v. GEORGE E. HACKMANN, State Auditor. In Banc, June 13, 1918. SUPERINTENDENT OF SCHOOLS: Traveling Expenses: Outside of State. Since the Legislature appropriated money to pay the traveling expenses of the office of State Superintendent of Public Schools, and the statute prescribing his duties says he shall have power "to in every way elevate the standard and efficiency of the instruction given in the public schools of the State" and further says that "all moneys reasonably expended in the execution of these duties shall, upon due proof," be allowed and paid by the State, the question of the necessity and expediency of incurring expense for this purpose, in the absence of statutory restriction, is to be determined by the Superintendent, and not by the State Auditor; and in consequence a reasonable expense account incurred by the Superintendent in railroad fares and hotel accommodations in attending an annual meeting, at Portland, Oregon, of the National Education Association, composed of superintendents of public schools in all the States and of leading teachers and educators throughout the county and organized to promote, foster and encourage the cause of public education generally, should, upon the Superintendent's approval, be audited by the State Auditor for payment out of the moneys so appropriated, as an expense useful and properly to be incurred in the performance of the Superintendent's statutory duty "to elevate the standard at 1 efficiene of the instruction given in the public schools of the State." Held, by WALKER, J., dissenting, that the statutes contain no intimation of a requirement that the State Supe intender t shall attend educational associations, and without a statute declaring, either in express terms or by reasonable implication, it to be his duty to attend national educational associations, the Legislature itself could not appropriate money to pay his traveling expenses in attending them. State ex rel. Lamkin v. Hackmann. Mandamus. WRIT GRANTED. A. T. Dumm for relator. (1) Mandamus is the proper remedy. State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Wilder, 199 Mo. 470; State ex rel. v. Wilder, 196 Mo. 429; State ex rel. v. Meier, 143 Mo. 447; Mansfield v. Fuller, 50 Mo. 339; 26 Cyc. 235, 236; 19 Am. & Eng. Ency. Law (2 Ed.), 782-785; High, Extra. Rem. (3 Ed.), sec. 104; Merrill on Mandamus, sec. 126. (2) And the return in the nature of a demurrer to the petition for the writ (which, under the stipulation, stands as and for the alternative writ itself) admits the facts pleaded in the petition. State ex rel. v. Reynolds, 256 Mo. 714; State ex rel. v. Gordon, 231 Mo. 559; State ex rel. v. Cook, 171 Mo. 354; High, Extra. Rem. (3 Ed.), sec. 449. (3) Mandamus being the proper remedy, and the facts alleged in the petition being admitted, the only question remaining for the court to decide is as to the law applicable to the admitted facts, and the law being clearly in relator's favor, the peremptory writ of mandamus should be awarded. Sec. 10922, R. S. 1909; Laws 1917, p. 10, sec. 22; Secs. 10920, 11813, R. S. 1909; High, Extra. Rem. (3 Ed.), sec. 449. Frank W. McAllister, Attorney-General, Thomas J. Cole and John T. Gose, Assistant Attorneys-General, for respondent. (1) A demurrer only admits those facts which are well pleaded. Paving Co. v. Fleming, 251 Mo. 222; Meek v. Hurst, 223 Mo. 696; Donovan v. Boeck, 217 Mo. 70. (2) Relator's right must be clear. "It is a principle of the law of mandamus that the relator must have a clear right to the performance of the act sought to be coerced by the mandate of the court." State State ex rel. Lamkin v. Hackmann. ex rel. v. Thomas, 245 Mo. 71. "In order for the writ of mandamus to be available, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondents to perform the act required." 19 Am. & Eng. Ency. Law (2 Ed.), 725; State ex rel. Doud v. Lesueur, 136 Mo. 452; State ex rel. v. Appling, 191 Mo. App. 592; High on Extraordinary Remedies, sec. 12, p. 17. FARIS, J.-This is an original proceeding by mandamus to compel the respondent, who is the State Auditor, to audit for payment two expense-accounts for traveling expenses incurred by the petitioner, who is the State Superintendent of Public Schools. The issuance of an alternative writ was waived by the respondent and it was agreed that the petition for the writ should stand for all purposes as and for the alternative writ. The pleadings state the case. The first count, omitting formal parts, and parts already substantially stated, runs thus: "Your petitioner says that, in the month of July, 1917, in connection with and in the discharge of the duties of his office as Superintendent of Public Schools of Missouri, as aforesaid, he attended the annual meeting of the National Education Association at the City of Portland, State of Oregon; that petitioner is, and, at the time hereinabove mentioned was, a member of said National Education Association; that said National Education Association is constituted and composed of the superintendents of the public schools of the various States of the Union, and of leading teachers and educators throughout the United States; and that the purpose of the organization of said National Education Association, and of the annual meetings of the same held in different cities of the country, is to promote, foster and encourage the cause of public education, and to elevate the standard and efficiency of the instruction given in the various States of the 275 Mo.-4 |