| Mo. | Oct 15, 1865
delivered the opinion of the court.
This was an action brought under the statute for the claim and delivery of personal property, to recover possession of a lot of corn alleged by plaintiffs to belong to them and wrongfully withheld by defendants. Defendants, appellants here, denied in their answer that respondents were the owners of, and entitled to the corn, and as a further defence they stated that before the commencement of this suit they were summoned as garnishees in three attachments suits pending in the St. Louis Court of Common Pleas, wherein one John T. Douglass was defendant, and that interrogatories were duly propounded to them touching their indebtedness to said Douglass on account of said corn. And that although in their said answer they denied all indebtedness as garnishees of
On cross-examination, witness stated that at the time of the institution of this suit the respondents were inhabitants of the State of Georgia, and were inhabitants of that State at the last time they were heard from by their correspondents in St. Louis.
The appellants then offered in evidence a transcript of the record from the St. Louis Court of Common Pleas, in the case wherein they had been summoned as garnishees of Douglass and judgment given against them. In their answer to the interrogatories, after making a formal denial, they stated that they had in their possession, stored in their warehouse, 408 sacks of corn, stored with them by said Douglass in his own name, and for which they gave said Douglass a warehouse receipt ; that on the 10th day of October, 1860, the day they were summoned as garnishees, they delivered the 403 sacks of corn to the sheriff of St. Louis county ; that the sheriff left the same in their possession subject to his order; that they retained the same until the 25th day of January, 1861, when by order of the sheriff they delivered the corn to Dobbins & Parsons, the respondents here.
It is observable that the appellants in their answer on the garnishment made no mention of the claim of the respondents, or that they were notified of the assignment of the warehouse receipt.
Two propositions are urged by the appellants as grounds
"We are unable to distinguish this case from that of Funkhouser v. How (24 Mo. 44" court="Mo." date_filed="1856-10-15" href="https://app.midpage.ai/document/funkhouser-v-how-7999920?utm_source=webapp" opinion_id="7999920">24 Mo. 44), where it was held that, a judgment against a garnishee, in an attachment, will not protect him.'against a "subsequent recovery in favor of one who had previously to the garnishment taken an assignment of the debt from the defendant in the attachment. And Judge Leonard, delivering the opinion of the court said: “ It is a fundamental principle upon which all security for private rights rests, and which never gives way to any other, that no one is bound by a judicial proceeding to which he is not a party, or at least of which he has not had notice and might have become a party. -. It was competent for the. Legislature to provide a mode, .upon, the attachment of debts, of giving notice thereof, and- to require all persons, interested to interpose their claims ;■ but they have, not done so, and it is not in. our power to" remedy the omission by declaring the ex ■parte condemnation against the debtor now allowed by law to be exclusive; upon the rights of strangers. The sentence binds the parties to the proceedings; but we cannot allow it to do more without violating a principle essential to the preservation of private rights.- The evil complained of proceeds from an infirmity incident to all ex parte sentences, and we cannot remove it without producing still greater evils. The remedy of the party who pays under such, circumstances must be against the attached debtor. As between these parties, the garnishee may.recover for money paid by him to the use of the debtor towárds satisfying the judgment.”
In the case at bar it was not merely an." assignment, but the property had never belonged to the debtor. The garnishee had notice of this before he answered; he neglected to set up this matter in his defence, and has paid over the money
By the act of Congress “ to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” approved Jnly>17, 1862, any person owning property in the loyal States who has given assistance, aid and comfort to the rebellion, is prohibited, after the passage of the act, from conveying or transferring any such property ; and it is a sufficient bar to any suit brought by such person for the possession or use of such property, to allege and prove that he is one of the persons described in the act. (Laws U. S. 1861-2, p. 590.) But the party who wishes to avail himself of the disability prescribed in the act as a defence, must allege the fact as well as prove it.
There must -be an allegation of the matter contained in the petition or answer, so that an issue can be had thereon. It being entirely omitted in the answer in this case, the court committed no error in disregarding the evidence on that point.
The judgment is affirmed.