67 Mo. App. 179 | Mo. Ct. App. | 1896
The Gregory Grocer Company brought a suit by attachment against E. O. Carlson and Neis. Printz, before a justice of the peace. On the writ of attachment, the Bovie-Heddens Grocer Company, the appellant, was summoned as garnishee. The return of the constable'indorsed on the writ was as follows:
“Executed this writ in the township of Kaw this third day of February, 1894, by making diligent search for and failing to find the within named defendant E. O. Carlson and Neis. Printz, and by attaching the following described goods and chattels as the property of the within named defendants, and .by declaring to Bovie-Heddens Grocer Company on the third day of February, A. D. 1894, in Kaw township, county of Jackson, that I did summon it as garnishee to appear before the within named justice of the peace, at his office, on the return day of this writ, to answer such interrogatories as may be put to it by said justice, and by reading to it this writ of attachment.
“J. B. Shoemakeb, Constable.
“By J. Q. Yocum, D. Constable.”
It does not appear from the return of the constable on the writ that he took steps, or made the declaration to the garnishee required by either of the foregoing statutory subdivisions. The proceeding in its nature is a proceeding in rem, the object of which was to effect, as it were, a sequestration of the property and credits of the attachment defendants, to the end that they may be ultimately applied toward the satisfaction of the plaintiff’s claim by the final judgment of the court. The statutable declaration of sequestration
But it is contended by the plaintiff that if the constable’s return, indorsed on the writ of attachment, is insufficient to confer jurisdiction, it is helped out by the return of the constable on the notice of garnishment, which is as follows:
“Executed the within notice of garnishment in Kaw township in Jackson county, and state of Missouri, on the third day of February, 1894, by delivering a true copy of the same to F. M. Bovie, president of the Bovie-Heddens Grocer Company, a corporation, the within named garnishee, and further executed this writ by declaring to the within named garnishee, Bovie-Heddens Grocer Company, that I do attach in your hands all goods, chattels, moneys, rights, credits,*184 bonds, bills, notes, drafts, cheeks, or other choses in action of the defendants, E. O. Carlson and Neis. Printz, that is now in your charge or under your control, or that may come into your possession or under your control, the same not being accessible whereupon to levy this writ or make this judgment or costs or any part thereof.
“J. B. Shoemakeb, Constable.
“By J. Q. Yooum, D. C.”
A notice given by the constable to the garnishee is not a judicial writ. The return of the constable on this notice, in the present case, can not be imported into that indorsed on the writ of attachment and thus utilized to supply the fatal defects of the latter. Todd v. Railroad, 33 Mo. App., ante.
From the return of the constable made on the writ of attachment and that on his notice of garnishment, the constable might, by leave of court, amend his return on the writ. Todd v. Railroad, ante; Brecht v. Corby, ante; Transier v. Railroad, 54 Mo. 189; Turner v. Railroad, 78 Mo. 578. And if the amendment, when so made, should show that the constable took the proper steps required to confer jurisdiction, before the judgment against the appellant was rendered, it would be sufficient, though not made until after the case was removed to the circuit court, or, for that matter, to this court, by appeal. Godman v. Gordon, 61 Mo. App. 685; Todd v. Railroad, ante; Turner v. Railroad, ante.
But the appellant further contends that even if the return of the constable on the writ can be amended by indorsing thereon the constable’s return on the garnishment notice, the return, when so amended, would still be insufficient to confer jurisdiction over the subject-matter of the garnishment, for the reason that the declaration of attachment, which we have hereinbefore set out, was under the fourth subdivision of section 543
The record discloses the fact that Printz, one of the attachment defendants, long prior to the attachment, had, by a certain instrument in writing, conveyed to the garnishee a certain stock of merchandise, and that in said instrument it was provided that out of the proceeds of the sale of said stock of merchandise, the garnishee should pay certain specified obligations, etc., and that the surplus should be paid to the said attachment defendant. If there was any such surplus in the hands of the garnishee at the time of the service of the notice of garnishment, he was bound by the stipulation in said instrument to pay over the same to the
And as to the amendment of the return, it may be remarked that the rule is that applications therefor in cases like the present are granted with great caution, and should be denied when the officer trusts merely to memory, and after lapse of months or years, asks to change the whole effect of his proceedings by adding to his return a statement which, if untrue, can not be disproved, and as to a fact which is not likely to have impressed his memory. Brecht v. Corby, 7 Mo. App. 300. Applying this rule to the return in the case in hand, it is obvious that no amendment of the return ought to be authorized by us. There is nothing in the record tending to show that the constable made the declaration of attachment required by the fifth subdivision of said section 543. It seems to us that it would not be the exercise of a sound discretion on our part to permit him, at so late a date, even if he were offering to do so, from mere memory to change his return so as to show that he made the declarations required by the
There are other questions called to our attention in the briefs of counsel, but in view of the ruling just made, it becomes unnecessary to notice them.
The judgment will be reversed.