Boyse v. Burt

34 Mo. 74 | Mo. | 1863

Dryden, Judge,

delivered the opinion of the court.

This was a controversy originating in a justice’s court, between Boyse, the execution creditor, and Burt, a garnishee of Baker, the execution debtor. The garnishee, by his answer before the justice, admitted his indebtedness to Baker for goods sold him by the latter, in the sum of f 165.15. The plaintiff recovered judgment for the amount of his execution debt, and Burt appealed to the Law Commissioner’s Court, where a trial de novo was had, resulting in a judgment as before the justice, from which Burt has appealed to this court. After the case came into the Law Commissioner’s Court, the garnishee presented his affidavit, by which he denies that his answer was such as is shown by the docket and proceedings of the justice; but says the answer made was to the effect that he had purchased goods from Baker to the amount of 1165.15, and which remained unpaid, “ and that he does not know to whom the amount for said goods is due, not knowing whether Baker, in selling the goods, acted as agent for the owner thereof or otherwise.”

Although the purpose of the affidavit probably was to secure the permission of the court to amend the answer, yet the record fails to show that any amendment was made, or that leave was even asked to that end, and the answer filed before the justice must therefore be regarded as the answer in the case.

An interplea by one Cormerais, claiming the ownership of the effects attached, appears among the papers of the case before the justice; but no notice of it whatever was taken on the docket of the justice, nor was there any action had concerning it in the Law Commissioner’s Court, nor anything asked to be done in regard to it by the interpleader.

There is no point saved in the record that would justify this coiirt in interrupting the judgment of the court below. The proceedings in the case are by no means devoid of errors and irregularities; but, as the garnishee did not deem them of sufficient importance to induce him to call the attention of the lower court to them and ask their correction there, we are not warranted in taking notice of them here, it being an inflexible rule of practice in this court to consider no question not raised in the lower court. The only exception found in the record is to the refusal of the court to grant a new trial; and as for any ground assigned in the motion, we have no hesitation in saying the new trial was properly overruled. The grounds assigned, or such of them as bring any matter to the attention of the court, relate to the supposed insufficiency of the evidence to sustain the verdict. As has already been seen, the answer expressly confessed the indebtedness of the garnishee, and no evidence was therefore needed to sustain the recovery, and none could properly be admitted in opposition to it.

The main ground urged in this court for the reversal of the judgment, is that the judgment having been rendered before the interplea was disposed of, was prematurely rendered. The rule is that an interplea must be determined before judgment against the garnishee; but I have some doubt whether the rule has application to a case like this, where the garnishee neither informs the court that there is a contest as to the ownership of the fund garnisheed, nor asks the judgment of the court on the claims of the contestants for his protection, but by his answer unreservedly admits his responsibility to the execution debtor. But, however this doubt may be resolved, it is sufficient in this case that the appellant, not having made the objection in the lower court, it comes too late here. And, further, as the appeal engaged the attention of the Law Commissioner’s Court for three or four successive terms before the final judgment, and as no action was ever asked by the interpleader to be taken in that court, and as none was taken on the interplea, it is fair to presume the interpleader had abandoned his claim and suffered a discontinuance.

The other judges concurring,

the judgment is affirmed.