15 Mo. App. 353 | Mo. Ct. App. | 1884
delivered the opinion of the court.
Bardenheimer was summoned as garnishee on an execution issued on a judgment obtained by Groschke against
The plaintiff filed a denial, and afterwards an amended denial. These denials are to the same effect, and allege that Bardenheimer, after he was summoned as garnishee, conspired with Johl and one Foell to deprive plaintiff of his recovery against Johl, in furtherance of which conspiracy Bardenheimer, on December 13, 1882, executed the note mentioned in this answer, and delivered the same to Johl, who then indorsed and delivered the same to Foell, who gave no consideration for the transfer, and received the same for the fraudulent purpose mentioned. Knowingthat Bardenheimer had been summoned as garnishee herein; and that Foell holds the note for Johl’s benefit.
Before the amended denial was filed, plaintiff moved for an order on Johl to produce in court the note in question. The trial judge heard testimony in support of this motion. After which he overruled the motion in the following language : —
“The testimony in support of this motion leaves my mind in so much doubt as to the right of Mr. Foell to hold and collect the proceeds of this nóte, that I shall not order him to deliver the note into court. ' This proceeding is summary without the intervention of a jury, and I do not feel disposed to make an arbitrary order divesting a party of the possession of property unless the proof is very clear. There are other modes of trying the question of
The amended denial and reply were then filed, and the issues thus made were submitted to a jury under instructions given by the court. The jury found that Bardenheimer was indebted to Johl in the sum of $825. Motions in arrest and for a new trial were overruled, and the court made an order that the garnishee pay to the sheriff, for the use of plaintiff, before June 30, 1883, the amount found by the jury to be due. Afterwards the court set aside the order overruling the motions in arrest and for new trial, and continued the motions to the next term. Meanwhile plaintiff had sued out an alias execution to the October term, under which the sheriff levied upon $2,100 of money as the property of defendant Johl. This money was claimed by Johl’s wife; plaintiff gave bond to the sheriff, and he applied the money to the execution, and paid over to plaintiff $1,844.65 in full of his debt and interest, leaving $178.19 in the sheriff’s hands. This payment was made subject to the claim, and the sheriff made return accordingly. Defendant then pleaded this payment to plaintiff in bar; and the facts appearing to the court as stated, the court overruled the motion for new trial and in arrest, and ordered that all further proceedings upon the verdict be finally stayed, and that plaintiff recover of defendant the costs up to July 25, 1883, the date on which plaintiff received the money from the sheriff, and that the costs after that date be taxed against plaintiff, and that executions issue accordingly.
Both parties appeal.
1. It is claimed by appellant Bardenheimer that the denial of the answer of the garnishee states no facts constituting a cause of action. It states that the note described in the answer of the garnishee was the property of the execution defendant when the garnishee was summoned, and continued to be his property until after its maturity; that
2. It is contended by defendant that the court erred in allowing plaintiff to introduce the books, ledger, journal, and cash book, and check book of the witness Foell. The ground of this objection is, that the only purpose of this testimony was to impeach Foell by contradicting and discrediting his testimony and that this was not competent, because Foell was plaintiff’s witness.. It is true that the general rule of law is, that a party can not discredit the testimony of his own witness, or show his incompetency. But a person may sometimes resort to other evidence to prove his case though denied by the witness first called by him to support it. These books were not introduced to contradict any statement of the witness as to what these books contained. The case was one in which plaintiff assumed the task of proving fraud from circumstances. He had a right to introduce the books of the witness, and it was for the jury to determine from all the statements of all the witnesses whether the purchase of the Bardenheimer note from Johl by Foell was a bona fide purchase, or a merely color-able transaction for the purpose of making it appear that
3. Defendant insists that there is no evidence whatever to warrant the finding of the jury that Bardenlieimer, at the time of the garnishment, was indebted to Johl. As to this-it must be said that there is often no direct evidence of fraud. It must be inferred from the circumstances. Foell states most positively that he bought the note of Bardenheimer from Johl on the 11th of December, the day before garnishment, at the request of Johl, and merely to gain the interest, the note having about three months to run. He is corroborated as to the fact that he paid the face of the note about that time in bank notes of small denominations, to Johl, and then received the paper. But Foell was not a man of much means; he was in a small way of business; no entry of the transaction appears upon his books. His check book shows that he did not draw this $800 out of bank. He can not, or will not, explain where it came from ; and would seem from his statements to have bepn carrying it about in his pocket. Sixty days afterwards, without any apparent reason, he lends $700 to JohPs wife. There is some evidence tending to show an effort on Johl’s part, about the date of the garnishment, to get Bardenlieimer to allow him to take up the note before maturity, and a quarrel between them because Bardenlieimer would not do so. The jury saw the demeanor of the witnesses ; and we do not think that the trial judge was bound to set aside this verdict because they discredited Foell’s statements that he bought the note with his own money, as an investment, and with no view of aiding Johl to defeat his creditor.
4. Defendant says that the bona fides of the transaction between Johl and Foell became res judicata when the trial court, after hearing evidence, overruled the motion to require Foell to produce the note in court. It is evident, however, that the court in overruling this motion, declined to pass upon the question of the ownership of the note.
Foell, under section 2525 of the Revised Statutes, might, if he had so chosen, have interpleaded in the cause; in which case the interplea must have been determined before judgment could be rendered against the garnishee. But Foell did not interplead; so that the statutory provision has no application. Defendant did not ask that Foell be required to interplead. He might have required this; but as he did not, the trial court was not bound to direct that Foell should be made a party. It is held that sections 2541 and 2542, which are cited in Wilson v. Murphy (45 Mo. 410), as sections 25 and 26, p. 68, Wagner’s Statutes, are merely directory, and impose no obligation of bringing-in the claimant. Had Foell been brought in, the judgment would have bound him and protected the garnishee. The fact that he was not brought in, and that the garnishee may perhaps be compelled to pay the note twice, because Foell did not interplead, can not be urged against the verdict upon the issue made between the execution creditor and the garnishee. Defendant should have required Foell to inter-plead, if he desired to protect himself. Wilson v. Murphy, 45 Mo. 411: Potter v. Stevens, 40 Mo. 591; McKittrick v. Clemens, 52 Mo. 160.
6. The statute provides (Rev. Stats. 2524) that, “ if it appear that a garnishee, at or after his garnishment, was possessed of any property of the defendant, or was indebted to him, the court, or judge in vacation, may order the delivery of such property, or the payment of the money owing by the garnishee, to sheriff, or into court, at such time as the court may direct, or may permit the ganiishee to retain the same, upon his executing a bond to the plain
The apparent satisfaction of the execution against Johl may turn out not to be real, if Mrs. Johl enforces her claim. The plaintiff may be compelled to refund to the true owner the amount received by him from the sheriff. Freem. on Ex., sect. 269 ; Magwire v. Marks, 28 Mo. 196. In view of the facts in evidence, the return upon the execution ought not to be taken as an absolute satisfaction of the judgment against Johl. If the claimant should esta b~ lish her right to the money seized as the property of the defendant Johl, and the plaintiff be compelled to refund this money, it may well be that the trial court ought then to order the garnishee, under this verdict, to pay the money found to be due by him to the sheriff, or into the court, or to give bond so to do. Until such an order is made, it would seem that there can be no judgment against the garnishee for the sum found by the jury in the garnishment proceedings. Plaintiff contends that the court should have entered judgment against the garnishee, with a stay of execution. But we think that, with the return of the sheriff
But such an order, had it been made, would not be a final determination of the particular suit, and, therefore, not such a definite sentence.or decree as to be a last judgment from which an appeal would lie. The decree actually rendered “ that'all further proceedings upon the verdict herein be finally arrested and stayed, and the plaintiff recover of defendant his costs,” etc., was, we think, a final judgment ; and for that reason erroneous. We are of opinion that the trial court, under the circumstances, may properly refuse to make any order upon the garnishee; that the verdict should be allowed to stand; and that the plaintiff, in case he should be compelled to refund, in whole or in part, the money collected on his execution, should have leave to move for the proper order upon the garnishee, after which judgment against the garnishee might follow as the statute provides.
The judgment is reversed and the cause remanded.