Bain v. Chrisman

27 Mo. 293 | Mo. | 1858

Scott, Judge,

delivered the opinion of the court.

It would seem to be a vain undertaking to attempt to support such proceedings as are contained in the record before us. Two plaintiffs by separate actions — there being no privity whatever between them — obtained separate judgments against the same garnishee. Afterwards a transcript of these judgments is filed in the clerk’s office of the circuit court. This transcript is made out in. such way as makes it appear that the two separate plaintiffs had obtained a joint judgment in their joint names against the garnishee. This transcript is made the foundation of an execution against the garnishee, on whose motion it was quashed. Nothing can more clearly vindicate the action of the court below in setting the execution aside than the bare statement of the case. Every execution must be founded on a legal judgment, with which it must correspond. As the law provided no remedy against a false transcript filed in the clerk’s office of the circuit court, the only course open to the defendant was a motion to set aside the execution, a power inherent in all courts of record. It is a little surpi’ising that the plaintiffs, when they discovered the gross irregularity of their proceedings, did not arrest them and have the proper transcripts filed on which regular executions might have been issued. The court, under the circumstances, had no authority to make an amendment; and had one been ordered, it could not have been made to correspond with the execution, so that the plaintiffs were necessarily denied the benefit of their irregular proceedings. As the execution was properly quashed at the instance of the garnishee against whom it was issued, it is unnecessary to inquire' whether Porter, the garnishee, summoned under the writ, could make such a motion.

.The sixth section of the law concerning executions provides that the service of a garnishment under an execution, and the subsequent proceedings against and in behalf of the garnishee, shall be the same as in the case of garnishment under an attachment. The 74th section of the act concerning attachments provides, that, in the event the plaintiff shall fail to recover judgment against the garnishee, the costs shall be adjudged against him, and that the court shall render judgment in favor of the garnishee for a sum sufficient to indemnify him for his time and expenses and reasonable attorney’s fees in attending and answering and defending in subsequent proceedings as garnishee. This will certainly be taken distributively. The garnishee will not be required to attend, answer and defend before he entitles himself to the benefit of this section. If time is lost and expenses incurred in consequence of the summons, it is reasonable that the garnishee should be proportionally indemnified, though he may not have answered, or although the prior termination of the cause may have rendered an answer unnecessary.

Affirmed;

the other judges concur.