49 Mo. App. 536 | Mo. Ct. App. | 1892
The principal question for decision on this record relates to the burden of proof in pro-( ceedings by garnishment. The plaintiffs, who were partners, brought a suit by attachment against George Greene and John A. Dygert to recover the sum of $1,393.06. They were successful in the attachment suit. Their attachment was levied by garnishment upon the goods and chattels, rights and credits of the defendant in the hands of J. J. Hibler, and Hibler was summoned as garnishee. Hibler appeared and answered interrogatories exhibited to him, which answer was to the effect that, at the date of the service of the notice of garnishment, he had in his possession, belonging to the defendants, the sum of $956.72; that the same had been paid to him by the Lombard Investment Company for the use of the defendants; that he was not indebted to the defendants or either of them; that he did not
The plaintiffs, nevertheless, filed a denial, alleging that the garnishee was employed by the defendants as their agent to negotiate a loan for them; that he had, in August or September, 1890, effected said loan, to-wit, in about the sum of $2,600; that at said date he had received this sum for and as the agent of the defendants; that out of the proceeds of the loan he had paid to the plaintiffs $956 as aforesaid, and still had in his hands belonging to the defendants the sum of $210.75.
To this denial the garnishee filed a reply in the following language: “The said garnishee for reply to the denial of plaintiff’s, the garnishee, answer says: It is not true that, at the time he was garnished, he had in his hands the sum of $1,166.75 due and belonging to defendants; that he has not now in his hands, nor did he have at the time he was garnished, the sum of $210 belonging to the defendant; that he has not now any sum of money whatever belonging to defendants; that, when he was garnished herein, he owed defendants the sum of $956.72, which he paid to plaintiff by order of the court; that he did not receive $2,600 from the Lombard Investment Company as agent of the defendants. Wherefore, he asks to be discharged.”
In order to get a clearer idea of the manner in which the question for decision is raised, it should be stated that the notice of garnishment was served on the seventh of November, 1890; that in August or Septem
Such being the substance of the evidence, the court submitted the issue to the jury upon the following four instructions, the first two given at the request of the plaintiffs and the remaining two at the request of the garnishee: “You are the sole judges of the weight of the evidence and of the credibility of the witnesses, and in determining the amount of credibility to be given to the testimony of any witness you may take into consideration the interest of said witness or witnesses in the result of this cause.
“The court instructs the jury that the only issue for them to determine in this proceeding is to determine from the evidence in the case what amount of money belonging to defendants, G-reen and Dygert, was in the hands of this garnishee, J. J. Hibler, at the time of his garnishment herein, to-wit, the seventh day of November, 1S93, 9:40 o’clock a. m., and from that amount, if you find the same to exceed the sum of $956.72, subtract said $956.72, and render yoUr verdict for the difference in favor of plaintiffs.
“Unless the jury believe from the evidence that, at the time Hibler was summoned as garnishee in this case, he had in his hands a greater sum than $956.72 belonging to Green and Dygert, they will find for the defendant, and the burden of proving he had a greater amount than this devolves on plaintiffs.”
And the court refused the following instructions requested by the plaintiffs, and they excepted: “The court instructs the jury, if you believe from the evidence that J. J. Hibler was and is the agent of George Green and John A. Dygert, then it devolved upon him to show that he has paid out all of their money at their request.”
The plaintiffs also excepted to the two instructions given at the request of the garnishee.
The- jury having returned a verdict for the garnishee, and the court having refused a new trial, the plaintiffs appeal to this court and assign for error that the court refused this instruction requested by them and gave the two instructions requested by the garnishee. These assignments of error were based upon the proposition that, as it appeared that a larger sum of money had, a short time prior to the service of the garnishment, come into the hands of the garnishee than the sum which he had admitted to have in his hands belonging to the defendants and which he paid over under order of the court, the burden was upon him to show that, by disbursements or otherwise, under the
To illustrate this distinction between the shifting of the burden of proof and the shifting of the preponderance of evidence, let us take the common case of an action of trover by a bailor against a bailee. The plaintiff gives evidence tending to show the bailment, a demand for a restoration of the thing bailed and a refusal of the demand. He then rests. This does not shift the burden of proof, as is often loosely said even in judicial opinion’; it merely shifts the preponderance of evidence, and casts upon the defendant the danger of losing his defense, unless he rebuts the evidence. It does not follow as a conclusion of law that the plaintiff is, in such a case, entitled to a recovery even though the defendant gives no countervailing evidence; since the jurors, who are the judges of the credibility of the plaintiff’s witnesses, may choose to disbelieve them. The true theory is that the burden of proof does not shift in the course of a judicial trial until the proposition of fact which is affirmed by the party originally sustaining the burden of proof becomes established in such a sense that it ceases to be controverted upon the record, but is established in a sense as a mere conclusion of law. It is perhaps choosing too strong an expression to say, as was said by the Kansas City Court of Appeals in Feurt v. Ambrose, supra, that the burden of proof never shifts under any circumstances whatever. Eor instance, where the plaintiff sustains the burden of proof the
It has always been the law in this state that the answer of a garnishee, made as it must be under oath, is evidence in his own favor. Davis v. Knapp, 8 Mo. 657, McEvoy v. Lane, 9 Mo. 48; Quarles v. Porter, 12 Mo. 76; Smith v. Heidecker, 39 Mo. 157. It is, moreover, conclusive evidence in favor of the garnishee, unless it is overthrown by evidence on the part of the garnishing creditor. Holton v. Railroad, 50 Mo. 151; Reinhart v. Soap Co., 33 Mo. App. 24. If the garnishee in his answer does not admit the indebtedness, the garnishing creditor must by a denial raise a triable issue. McCause v. McClure, 38 Mo. 410. This issue is not raised by the interrogatories and the answer of the garnishee; but it can only be raised by a denial of the answer by the garnishing creditor and a reply thereto by the garnishee. Brown v. Gummersell, 30 Mo. App. 341. Interrogatories and the answer are merely preliminary to the framing of this issue. This denial of the answer by the garnishing creditor stands in the place of the petition of the plaintiff in an ordinary action at law. Union Bank v. Dillon, 75 Mo. 380; Groschke v. Bardenheimer, 15 Mo. App. 353. It necessarily follows from these statements of legal doctrine that the burden of proof is upon the garnishing creditor; for, in order to
If the garnishee had, either in his answer or in his reply to the denial, admitted that, in a recent period prior to the service of the garnishment, he had received a larger sum for and on account of the defendants than the sum which he paid over on the order of the court,, then it may be conceded that the burden would have-been on him to show that he had disbursed such moneys, for or - on the orders of the defendants. Such was the-ruling in Parker v. Osborne, 71 Me. 69, where the garnishee made a similar admission in his “disclosure,” which under the system in Maine corresponds to the answer under our system. But- the garnishee in this case made no such admission, either in his answer or in his reply to plaintiff’s denial, but in his reply he denied the plaintiff’s allegations on the point. There is no sound legal conception, then, upon which it can be held that the burden of proof rested upon him to show in what manner he disbursed the money which he had received as the agent of the defendant, until, when he took the witness stand after the plaintiff’s evidence was
Upon the other proposition, that the verdict is unsupported by the evidence, it is sufficient to say that, although the evidence may have preponderated in respect of its credibility in favor of the plaintiff, — a matter with which an appellate court has nothing to do in a case at law, — yet the jury could not have found for the plaintiff without discrediting the testimony of the garnishee.
Finding no error in the record, it is ordered that the judgment be affirmed.