Fee v. Kansas City, Fort Scott & Memphis Railroad

58 Mo. App. 90 | Mo. Ct. App. | 1894

Ellison, J.

This action was begun before a justice of the peace where plaintiff had judgment. On appeal to the circuit court plaintiff again had judgment.

Defendant concedes that it owes plaintiff $5.40, which was duly tendered and deposited in court. To the balance claimed there is the defense that defendant was indebted to plaintiff in that sum, but that it was summoned as garnishsee in a case arising in a justice’s court, wherein one Munson was plaintiff, and the plain•tiff here was defendant. That it paid said balance on ■this garnishment after proper proceeding in said justice’s court. The disposition of this case is made to -turn altogether upon the validity of the garnishment -proceedings. The plaintiff here says they were void, • and afford no protection to defendant in paying the same in the Munson suit. The defect consists in the constable who served the attachment writ and the notice of garnishment, having failed to state in his return that he had made the service by serving the nearest station agent of defendant, and that he attached the moneys in his hands, such being the mode of legal .service prescribed by statute. The fact was that the • constable made the proper legal service, the only 'trouble ai’ising in his failure to make a proper return.

After this case was instituted, the justice before whom the garnishment proceedings were had, made an order permitting the constable to file an amended return; which he did, showing a legal service. When this case reached the circuit court application was made for the permission of that court for the constable to make an amended return, showing proper service. This was refused, and judgment given for plaintiff as before stated.

Plaintiff relies upon cases which have arisen in the different appellate courts of the state, wherein it is decided that on a garnishment proceeding the officer must declare to the garnishee that he attaches in his hands the property and effects of the defendant. And, in case of a railway corporation, that the service must be had upon, and the declaration of attachment made to, the nearest station agent, in order that the, court may have jurisdiction. Norvell v. Porter, 62 Mo. 309; Norton v. Porter, 63 Mo. 345; Haley v. Railroad, 80 Mo. 112; Gates v. Tresten, 89 Mo. 13; Dunn v. Railroad, 45 Mo. App. 29; Todd v. Railroad, 33 Mo. App. 110.

This case presents a different question, for here it. is admitted that proper service was, in fact, had of the attachment writ and of the garnishment 'summons, though the return of the .officer did not disclose a proper service. The question made by this case is whether the officer should be permitted to amend his return so as to make it conform to the fact. Since possibly some embarrassment might arise in permitting a justice to allow an amendment after judgment day, without consent of parties, as was suggested by Hough, J., in Norton v. Porter, supra, we have considered this case on its facts; that is, that the amendment was made before the justice and was asked to be made under the supervision of the circuit court after the present case reached the latter court. On these facts we are of the opinion that the amendment should have been allowed by the circuit court. In some cases pertaining to this question the ruling is that the amendment must be made upon the order of the court in which the original proceedings were had. While in others amendment is permitted by the court in which the then present litigation is pending. But we need not take upon ourselves the unnecessary burden of choosing between these, since here, as we have shown, the ease covers both views. But that amendments are looked upon favorably by the courts where they attest an existing fact, the evidence of which has been inadvertently suppressed, is abundantly supported. Drake on Attachment, sec. 212; Wade on Attachment, sec. 363, p. 70; 22 Encyclopedia of Law, p. 200; Brainard v. Burton, 5 Vermont, 97; Rapp v. Kyle, 26 Kan. 89; Wilkins v. Tourtelotte, 28 Kan. 825; 29 Kan. 513; 42 Kan. 176; Turner v. Railroad, 78 Mo. 578; Kitchen v. Reinsky, 42 Mo. 427; Scruggs v. Scruggs, 46 Mo. 271; McClure v. Wells, 46 Mo. 311; Transier v. Railroad, 54 Mo. 189; Blaisdel v. Pope, 19 Mo. 157, and cases cited; Miles v. Davis & Taylor, 19 Mo. 408.

In Turner v. Railroad, supra, Judge Henry said: “The justice had jurisdiction of the cause if the writ was, in fact, properly served upon the defendant, whether the return of service made by the officer was defective or not. The service in this case was sufficient, and the return only was defective in not stating correctly the manner of service, and no error was committed by the circuit court in permitting the amendment.” That was said of a case yet pending and on appeal, but it is not without its application to the case before us. So in Wilkins v. Tourtelotte, Judge Brewer said that: “This return in no manner discloses by whom the acts stated in it were in fact done — whether by the sheriff, or the plaintiff’s attorney, or an entire stranger to the court or the case. Now without the signature of an officer, is it evidence that anything in fact was done! Counsel argue that because the statutes of some states explicitly require that the return be signed by the officer, while ours do not, the failure to attach such signature is an immaterial omission. We can not concur with this argument, because we think the signature is inherently an essential part of the return. See the following authorities as throwing some light on this question: Barnett v. Vineyard, 34 Mo. 216; Ditch v. Edwards, 1 Scam. 127; Joyce v. Joyce, 5 Cal. 449. Nevertheless, the defect is one which is amendable. It is something that does not affect the fact of service, but simply the evidence of it. And generally amendments' are permissible when they sirhply run to perfecting the proof of service which was in fact made. (Kirkwood v. Reedy, 10 Kan. 453.) But still the amendment is one which should be made. As the record stands, it fails to show service. We may not presume that service was in fact made; the record should show it. The return may be amended, but until amended we can not presume that the facts were done and by the proper officer.”

Since the agreed statement of facts shows that judgment should have been entered for defendant, at least upon the amendments being made in the circuit court as offered, we will reverse the judgment and remand the cause with directions that upon the amendments being made, judgment be entered for defendant.

All concur.