Opinion
No. 44596.
August 11, 1981. Motion for Rehearing and/or Transfer to Supreme Court Denied October 16, 1981.
Daniel P. Card, II, Clayton, for plaintiff-appellant.
Conway B. Briscoe, Jr., St. Louis, Jess W. Ullom, Clayton, for defendants-respondents.
Petition for mandamus, and other relief, for failure to comply with an order of this Court entered in Colla v. Colla, 614 S.W.2d 9 (Mo.App. 1981).
We issued our preliminary order on July 21, 1981. Defendants filed an answer. Our preliminary order is made absolute in part, but other relief requested by John C. Colla (father) is denied.
In Colla, we ordered Helen K. Colla (mother) and Conway B. Briscoe, Jr. (lawyer) to pay back $20,331.00 into the registry of the trial court pending a hearing on the issue of entitlement to such money in Cause Number 20378-F. The $20,331.00 had been paid into court on a garnishment and withdrawn by Helen Colla. Our remand to the trial court from which the cause was appealed was a mandate for wife and her lawyer to comply. Upon noncompliance, it was incumbent upon the trial court that our "determination ... be carried into execution by that court," by the power and authority available to the trial court. Rule 84.28; City of St. Charles v. Schroeder, 510 S.W.2d 202, 203 (Mo.App. 1974); Morrison v. Caspersen, 339 S.W.2d 790, 792 (Mo. 1960).
Wife and lawyer elected to disobey the mandate of this Court by failing to pay $20,331.00 into the registry of the trial court. Instead, wife, through lawyer, filed a request for execution and/or garnishment against father in the same Cause Number 20378-F, claiming $25,200.00 was due from father to mother.
Father filed a motion to enter judgment in accordance with mandate from Missouri Court of Appeals and a motion to quash or in the alternative to stay request from writ of execution and/or garnishment summons.
On June 24, 1981, the Honorable William M. Nicholls, Judge, Division 15, Circuit Court of the City of St. Louis (Judge), in essence, ordered parties to continue with Cause Number 20378-F without requiring wife and attorney to pay said sum of $20,331.00 into the registry of the court. Judge Nicholls had no authority to make such order in contravention of the mandate of this Court. Rule 84.28.
Judge Nicholls, or any other judge before whom this cause may pend, is hereby ordered:
(1) To delay and refrain from conducting an evidentiary hearing on husband's amended motion to quash the writ of execution and/or garnishment summons in Cause Number 20378-F until such time as wife and lawyer have complied with our mandate and have repaid into registry of the circuit court the sum of $20,331.00; and
(2) In the event that wife and lawyer shall forthwith fail to pay such sum of $20,331.00 into the registry of the circuit court the trial court shall make and enter such further orders and issue the appropriate process which will secure compliance by wife and lawyer with the directions contained in this Court's mandate of May 12, 1981.
WEIER and SNYDER, JJ., concur.