116 Mo. App. 56 | Mo. Ct. App. | 1906
Plaintiff, a judgment creditor of defendant Robertson, had execution issued and caused Alexander to be summoned as garnishee. In due time, interrogatories were filed by plaintiff and answered by
The garnishee testified that before the occurrence of these proceedings in the probate court a Mr. Hamilton, another creditor of defendant, presented to him a written order signed by defendant directing the payment to Hamilton of the amount of defendant’s share in the money to be distributed and requested and obtained the acceptance of the order, and that very soon after the service of garnishment the garnishee paid the fifty-seven dollars due defendant to Hamilton. In the
First, he contends that the denial is fatally deficient in omitting from its allegations facts constitutive of the cause of action pleaded. The garnishee made no attack upon this pleading by demurrer or motion, but replied to the merits and therefore waived all defects, except those so fundamental in character that a verdict could not cure them. The specific objection is that in alleging that the garnishee “had in his possession and under his control $57 ... in money coming to and due this defendant,” a conclusion of law and not a fact is stated. We do not agree with this. The averment advised the garnishee to prepare to meet an issue of fact — that he held when served with notice a specified sum of money belonging to and due the defendant. It may be conceded that a conclusion is stated, but it is one of fact and not of law. Often it occurs that an elemental fact is dependent for its existence upon other facts and therefore cannot be established by direct proof, but it is none the less a fact and the averment of it alone satisfies the rules of pleading, which do not require but condemn the pleading of purely evidentiary facts. [Russell Grain Co. v. Railroad, 114 Mo. App. 488.] The allegations of the denial are sufficient.
Further, the garnishee contends that the action .must fail because the proceeding under the pleadings is against him-as an individual, while the proof shows that the only relation he sustained to defendant with respect to the money in question was in his representative capacity as an administrator. Under section 3435, Revised Statutes 1899, an executor or administrator of
Another point urged by the garnishee is that plaintiff failed to prove by competent evidence the making of an order of distribution. The order itself, or the court record thereof, would have been the best evidence and neither was produced, but the garnishee when testifying as a witness, in effect, admitted that the order had been made when he Was served and his defense upon the merits was in part based upon the fact of the existence of the order. Plaintiff’s omission to make formal proof was cured by these admissions.
The demurrer to the evidence was properly overruled.
We have examined the instructions and find the issues were fairly presented to the jury. No error appearing in the record, the judgment is affirmed.