Briggs v. Block

18 Mo. 281 | Mo. | 1853

Rylakd, Judge,

delivered the opinion of the court.

From the above statement of facts, though several minor questions have been raised, yet there are but one or two which must settle this controversy between the parties.

1. There is no necessity to have the name of every person summoned as garnishee inserted in the writ. “All persons shall be summoned as garnishees who are named as such in the writ, and such others as the officer shall find in the possession of goods, money or effects of the defendant, not actually seized by the officer, and debtors of the defendant, and also, such as the plaintiff or his attorney shall direct.” R. C. 1845, tit. Attachment, article 1, sec. 13. The objection, therefore, that the garnishee’s name, Block, was not in the writ, is untenable. The sheriff had the power and authority to summon him as debtor, or a person in whose possession property or money or effects belonging to the defeudant in the suit was supposed to be.

2. The law requires, that the allegations and interrogatories shall be filed at the return term of the writ, and within the first three days thereof, if the term shall so long continue ; if not, then before the end of the term, and not afterwards, unless for good cause shown, the court shall otherwise order. In this •case the allegations were not filed within the first three days of the term, but were filed before the end of the term, and this court will not undertake to say, that such was error — that there was no good cause shown. This objection is likewise overruled.

3. The garnishee, Block, filed his answer, as set forth in the statement; to this the plaintiff also replied as stated. The garnishee moved the court to be discharged, alleging that his answer was not denied, and that, in consequence thereof, he was entitled to a discharge therefrom. The court overruled this motion and gave judgment against the garnishee for two hundred and forty-two dollars and eighteen cents, being the amount of the judgment against the defendant, Robbins, in favor of the plaintiffs. It has been decided by the court, at this term, that the denial of the answer of the garnishee need not be sworn to. Stewart et al. v. Anderson, ante, 82.

,4. The main questions in this case are these : taking the answer of Block as true and so admitted without denial, were the funds in his hands liable to plaintiff’s attachment ? and were the plaintiffs entitled to judgment against him as garnishee ? In the opinion of this court, these questions must both be answered in the affirmative.

As to the first question, it no where appears that Berthelet had been advised, at the time Block was garnished, of the way Robbins was providing through Block for paying him; he therefore had not assented to it; it was not then a payment to him, nor was it at his risk. The gold dust was still at the risk of Robbins ; so that, had it been lost on the way to Block, or been lost in Block’s hands, by theft or by Block’s failure, the loss would have been Robbins’ and not Berthelet’s. It had not become the property of Berthelet; was subject to the counter•mand of Robbins ; so that he could have countermanded the payment thereof to Berthelet and ordered it to be paid to these plaintiffs, or have made any other disposition thereof. Hence, the funds were liable to plaintiff’s attachment. See case of Sproule & Agnew v. McAnulty, 7 Mo. Rep. 62. The case of Sproule & Agnew v. McAnulty settles the principles of the case now before the court, and to the opinion in that case reference is made.

These funds being, according to the decision of Sproule & Agnew v. McAnulty, attachable in the hands of Block, the garnishee, and the amount attached being more than the debts due by Robbins to the plaintiffs in this case, and also in the one in which Block had been previously garnished, it was proper to give judgment against him as garnishee.

The judgment o£ the court below will therefore be affirmed,

the other judges concurring.