62 Mo. App. 146 | Mo. Ct. App. | 1895
The record in this case discloses the following facts: The plaintiff, who is a resident of Lawrence county, obtained a judgment against Bowe before a justice of the peace in Barry county. The justice issued an execution thereon to a constable of Barry county, who, in his turn, not finding any property in the county whereon to levy the same, issued a garnishee summons to be served upon the defendant garnishee, which is a nonresident corporation. This summons was sent to the sheriff of the city of St. Louis, who served it upon the defendant garnishee by service on the superintendent of the insurance department, and returned it to the constable who filed it as a return in the case. The plaintiff thereupon filed interrogatories before the justice, which the garnishee answered, denying all indebtedness, and the plaintiff took issue by reply. On the day set for the hearing of this issue the garnishee appeared before the justice, but the plaintiff did not, and the justice rendered a judgment in favor of the garnishee for its costs. On the succeeding day the justice set aside this judgment in the garnishee’s absence on the ground that the plaintiff had no legal notice of the setting, and reset the case for trial on the second day of December, Í893. On the last named day the plaintiff appeared, and, the garnishee not appearing, the justice rendered a judgment against the garnishee for the amount of plaintiff’s
Both these errors are well assigned. The record clearly shows that the justice never had any jurisdiction over the debt in the hands of the garnishee, and never could have rendered any valid judgment condemning such debt, or any part thereof. The process mentioned in section 5912 of the Revised Statutes of 1889, which maybe served on a foreign insurance company by serving the superintendent of insurance, is the process issued by a court of justice, and not the process issued by a constable. We are aware of no law which enables a justice to give to his execution an extra territorial force, that is, one extending beyond the limits of his county. The statute provides that he may issue the execution to any constable in the county, but not to an officer outside of the county, nor is, in the case at bar, the process served on the garnishee a process issued by the justice. It is true that a garnishee may, by his negligence in pleading, invite an order of payment which will be binding upon himself while it fails to bind his creditor, but courts should avoid this hardship by discharging the garnishee while they have con
The court also erred in holding that the first notice of appeal given in the case was insufficient. That notice was formally sufficient in every respect. It was served by an officer, authorized by law to serve such notices, within territorial limits in which he was authorized to make such service, and the service must be held to have been made on his official oath. The return was at least prima facie evidence of the fact of service (Boyle v. Tolen, 8 Mo. App. 95), and, as there is no pretense in the case that service of notice was not had as stated in the return, but all the facts indicate that it was had, the court should have treated the notice as sufficient.
The garnishee asks for an allowance for answering-in this court, bnt we are of the opinion that such allowance should be denied. As successful party, it is entitled to costs and no more. Had it pleaded to the jurisdiction of the justice, as it was its duty to do, all subsequent costs would probably have been avoided, as we must assume that the justice in accordance’with law would have discharged the garnishee on such plea.
The judgment is reversed and the cause dismissed.
