6 Mo. 388 | Mo. | 1840
Opinion of the Court Delivered by.
On the fifth day of August, in the year 1887, the said John J. Anderson commenced an action before Joseph Walsh, a justice of the peace of St. Louis county, against J. Snow-den Hopkitu', by attachment, and James Brotherton, in his life time, was summoned a; garnishee.
The suit was founled on a note for $143.55. • On the day of trial, Brotherton not appearing, tile juitice entered up judgment against him for the amount of the note. Execution was issued against Brotherton, and on the 27th day of September 1837, the execution was returned satisfied. On the 30th clay of July 1S38, the said James Brotherton departed this life, and Marshall Brotherton, the plaintiff in this proceeding, became his admini-trator. On SUthof April, 1839, Marshall Brotherton, administrator of sadl James Brotherton dec’d, having given notice to the said John J. Anderson, moved the justice to set aside the judgment, given a-i aforesaid against the said James Brotherton in his life time, for irregularity. The justice of the peace over ruled the motion, Brotherton, the administrator, prayed an appeal which was refused; and having stated these matters, in the form of an affidavit, he applied to the circuit court to make an order to the said Walsh, to show cause why he did not grant an appeal in the case above mentioned. The court over ruled this motion, and the plaintiff in the motion, Bro-therton administrator as aforesaid, brings the cause into this court by writ of error.
In case the garnishee, being duly summoned, shall fail to appear at the proper time, the plaintiff may take judgment against him by default, which maybe proceeded on to final judgment, in like manner as in cases between plaintiff and defendant; or, at the option of the flaintifl', the justice shall attach the body oí the garnishee, until he shall make full and
This being a judgment by default, we roust resort to the fifth article of that act. Bv the first clause, of the first seo- . . , , ‘ , , , , tion, of that article, if the suit be founded on an instrument writing, &c., and the plaintiffs demand be liquidated, is given for what shall appear to be due by that instrument. But the second clause of that section provides, that if the suit be not founded on an inslrument of writing, &c., and the plaintiff appears in person, or by his agent, the just*ce Proceed to hear his allegations and proofs, and shall determine the cause as the very right thereof shall appear ft’0® the testimony; and if it appear from the testimo-that the plaintiff is entitled to recover, judgment shall be rendered by default against the defendant, for so much as tfie testiinonv shows the plaintiff entitled to, with costs, see page 359 of the digest of 1835. But on the part of Andor-son, the defendant in this motion, it is contended, that the judgment ought to be given against a garnishee, in a judgment by a default, for the full amount that the defendant aPPear to owe to the plaintiff; and the plaintiffs do-mand being founded on a note, that Brotherton ought to b& adjudged to pay the amount of the note, otherwise no person summoned as a garnishee, would appear in obedience to the writ The argument proceeds upon the supposition of much v*ce *n *he community, and the necessity of imposing a hea-penalty on the garnishee, for the interest of the plaintiff the action. It is not reasonable to suppose, that the legislative body would require a garnishee, who perhaps owes ten dollars to the defendant, in attachment to have a judgment by default rendered against him for $143, merely because he failed to appear in obedience to the summons.— indeed the plaintiffs have no evidence to establish the indebtedness of the garnishee to the defendant in their attach
The docket of the justice shows a judgment irregularly obtained by the plaintiff in the attachment, against the garnishee, such an irregularity is not cured by lapse of time. — Such being the opinion of this court on this point, it becomes useless to consider other points made by the counsel of therton, the plaintiff in this motion. The circuit court will , i ... make-an order to the justice, to' allow the appeal from hi decision on the motion of Marshall Brotherton, adm’r James Brotherto i; to set aside the judgment by which was entered up by said justice against said .lames Bro-therton in his lile time, summoned as garnishee as above .. , , i ,. mentioned, or, to show cause to the contrary. Such is the opinion of the Supreme Court. 1