45 Mo. App. 225 | Mo. Ct. App. | 1891
— The controversy in this case arises between the plaintiffs and interpleaders, S. Brainard Pratt et al., and Benjamin Benedict et al., all of whom are judgment creditors of the firm of A. Loth & Sons, on the one part, and George R. Lockwood, receiver of the said firm, interpleader on the other part. The facts which appear from the record are briefly as follows:
The firm of A. Loth & Sons had, prior to November 16, 1889, transacted its banking business with the Bank of Commerce, of St. Louis. On that day, the members of the firm, finding the firm insolvent, and having
“November 16, 1889. The following accounts have been transferred to the Bank of Commerce, St. Louis, Missouri, as collateral security for our indebtedness to' them :
Securities on account to sundries.... $2,868 76
H. Strauss, Denver, Colorado.......$881 41
S. B. Randall & Co., Sefalia, Colorado,. 198 72
Daniels, Fisher & Smith, Leadville, Colorado................'....... 446 53
A. Seedier, Erie, Colorado.......... 173 53
Levy, Sternberger & B., Boulder, Colorado..... ................. 168 25
Hilderbrand & Bauman, Alton, Illinois............................ 720 49
P. Freedman, Denver, Colorado..... 279 77
Bills receivable on account....... .. 458 30
Max Keller ........................ 358 30
S. Hoffman......................... 100 00”
And the record of the assignment appeared on A. Loth & Sons’ ledger, as follows (p. 38):
“ SECURITY ACCOUNT
“Bank of Commerce, November 16, 1889.
To sundries.................................$2,858 76
Bills receivable............................ 458 30
On November 20, 1889, A. Loth & Sons had on deposit to their credit in the Bank of Commerce the sum of $386.83. On the same day, or a day or two thereafter, and after the attachment had been levied on the books of A. Loth & Sons, the president of the bank informed one of the members of that firm, that the bank did not feel itself sufficiently secured, and that it would appropriate this cash balance and hold it as additional security for the indebtedness of the firm to the-bank, to which the member of the firm assented. At this, time no notice of any levy had been served on the bank. There was no entry on the ledger or journal of the firm-, of A. Loth & Sons of the cash balance due to it from the bank, but the cash book of the firm disclosed the-circumstance that the cash of the firm was in some-bank or other. The receiver did not notify the bank of his appointment, as required by the statute (R. S.. 1889, sec. 552), until December 13, 1889, which was. long after the transfer of this cash balance. On May 27, 1890, when the last of the discounted paper of A. Loth & Sons, held by the bank, had been paid, the bank, applied said cash balance, and the proceeds of the collateral account which had thus been transferred to it by A. Loth & Sons, to the liquidation of the amount then due to it from the firm. It had collected all the
On May 31, 1890, after the bank had so applied the collateral and had ascertained the balance in its hands, the plaintiff and the interpleaders, S. Brainard Pratt et al., and Benjamin Benedict et al., caused the bank to be summoned as garnishee. Thereafter the bank, as garnishee, hied its answer, asking leave to pay and deliver the money and notes aforesaid into court, and praying that the garnishing creditors and the receiver, George R. Lockwood, interplead for the same, which the court ordered to be done, and which was done. At the trial of the interpleas, the garnishing creditors asked the court to give certain declarations of law, which the court refused. Thereupon the court rendered a judgment in favor of George R. Lockwood, receiver, and directed the clerk of the court to pay over to said Lockwood the money in controversy, and to deliver to him the unpaid discounted notes which the bank had deposited in court. From this judgment the plaintiffs, S. Brainard Pratt et al. and Benjamin Benedict et al., prosecute the present appeal.
We do not think it necessary to refer to the instructions refused, because we are of opinion that the judgment which the court rendered was the only judgment which could properly have been rendered upon the above state of facts, which facts are not disputed. It appears from the foregoing statements that the sheriff levied upon the books of accounts of A. Loth & Sons, that the receiver was appointed, and that the receiver notified the bank of his appointment, as required by the statute, prior to the time when the interpleaders
We are of opinion that the levy was sufficient under the statute to reach the account which the firm of A. Loth & Sons had with the Bank of Commerce, and to attach in the hands of the Bank of Commerce whatever balance should be found due to the firm of A. Loth & Sons, upon the final settlement of that account. The transaction by which the account had been transferred by A. Loth & Sons as collateral security to the Bank of Commerce was, as above seen, distinctly spread out upon the journal of the firm, which journal was one of the books of account of the firm levied upon by the sheriff. The other accounts of the firm with the Bank of Commerce as a depositor in that bank were presumptively shown by the pass book, in which the bank kept its accounts with the firm ; and a balancing of that pass book at any time in the usual way in which banks do business with their customers would have exhibited the state of the account between the bank and the firm, and the balance due to either. Whatever indefiniteness might exist in these accounts was aided by the cash book and the ledger ; and we do understand that it is contended that , the state of the accounts between the firm and the bank could not at any time have been ascertained by the books of the firm, supplemented by
A forcible argument has been made by counsel for appellant to the effect (if we summarize it correctly), that this statutory proceeding, by levying upon- the debtor’s books of account, appointing a receiver, and the receiver notifying the debtor, is merely a statutory mode of garnishment; that, as in the case of an ordinary garnishment, the .process reaches only debts which were actually due at the time of the levy of the garnishment, or, at most, at the time of the answer of the garnishee, and does not reach mere equities or contingencies. We are unable to take this view. Our view is that the remedy created by the statute is something more than a mere garnishment. The remedy by garnishment continues, and is not displaced by this peculiar statutory levy. In the present case the first attaching creditor, in addition to levying upon the books and proceeding as he has done, might also have proceeded by garnishment against the Bank of Commerce. If this statutory remedy were merely another kind of garnishment, with no greater scope than the ordinary garnishment, then the'enacting of it by the legislature would have been a work of supererogation, at least so far as domestic creditors are concerned. Our view is that the statutory levy upon the books of account of the debtor impounds whatever debts and rights of action, present or prospective, are exhibited by the accounts contained in those books, and that, when the receiver perfects the levy by notifying the other party to those accounts, the levy and notice are effective to impound and subject whatever maybe due upon the final adjustment of those
We see no difficulty in this case requiring more extended observation, and our judgment is that the judgment of the circuit court be affirmed.