139 Mo. App. 4 | Mo. Ct. App. | 1909
Plaintiff recovered judgment December 2, 1904, in the circuit court of Dent county for $100 against defendant, M'alinda Shoemate. An alias execution was issued on this judgment November 12, 1907, whereon E. F. Dent was summoned as garnishee and all the money and property in his hands belonging to the defendant were attached. On the return of the execution showing the garnishment of Dent, Cope propounded statutory interrogatories to the latter, who answered he neither had in his possession, custody “ or charge any goods, chattels, money, credits or effects belonging to Mal inda Shoemate on the date of the garnishment, to-wit, November 12,1907, nor owed the defendant any money on said date or the date of the answer, and that he was not bound in contract on either date to pay her any money. An issue was taken on these answers by the plaintiff, who filed a denial of them wherein he averred Dent had in his possession and under his control when served with garnishment, and also when he answered, $200 in money belonging to defendant. Dent responded to this averment by denying it and also by pleading a former adjudication based on the following facts: that at the October term, 1907, of the Dent Circuit Court, a garnishment proceeding between Cope and Dent, the present garnishee, was determined, which
The plea of former adjudication was not well taken because, as stated, at the time of said garnishment the injunction suit was still pending and Dent held a specific lien on and was entitled to retain the $200 in his hands as indemnity, against Mrs. Shoemate or whomever had deposited it with him. That is to say, whether or not the original owner of the fund would have an interest in it later, depended on a contingency to happen- in the future, and this fact prevented the fund from being subject to garnishment on legal process. [Atwood v. Hale, 17 Mo. App. 81; Beckham v. Carter, 19 Mo. App. 597.] Perchance the fund might have been reached by an equitable garnishment, wherein the garnishee could have been protected in his right to have it applied first to make him whole, if he suffered loss as surety on the injunction bond, and a judgment for plaintiff could have been given subject to such contingency. As to this we do not decide, because the first proceeding, like the present one, was of a legal and not of an equitable nature. The only matter settled by the prior adjudication was that Dent had not at the time, any money or assets belonging to Mrs. Shoemate and subject to garnishment, After the injunction suit had been determined in Mrs. Shelton’s favor and Dent discharged from liability as her bondsman, the $200 remained in his hands free from any claim or lien, was garnishable assets and might be garnished by Cope on his judgment against Mrs. Shoemate if it belonged to her. The principal contention in the case is that the money, which Dent admitted he held, was not Mrs. Shoemate’s but Mrs. Shelton’s, and had been placed by the latter with Dent to indemnify him. Without going into the evidence relevant to the issue, for it is minute and circumstantial, suffice to say it warranted the jury to find the money had been advanced, not by Mrs. Shelton, but by Mrs. Shoemate. It was turned over to Dent by the attorney who was
The garnishee has asked an allowance of $93.20 for answering in the case. The claim as itemized is for an attorney’s fee, docket fee in this court, bill of exceptions, abstract of record, printed briefs, etc. The garnishee would have been entitled to a reasonable allowance for expense and trouble of answering the garnishment, if he had admitted possession of assets belonging to the defendant, or if plaintiff had failed to obtain judgment against him. [R. S. 1899, secs. 3454 et seq.] All the trouble and expense he suffered in this proceeding, were due to his resistance of plaintiff’s demand, and he and not plaintiff must bear the loss. [Simmons v. Railroad, 19 Mo. App. 542, 546; Tombs v. Moore, 64 Mo. 667.]
The judgment is affirmed.