Lieber v. St. Louis Agricultural & Mechanical Ass'n

36 Mo. 382 | Mo. | 1865

Lovelace, Judge,

delivered the opinion of the court.

The judgment in this case cannot be permitted to stand, upon any sound legal principles. The defendant here was indebted to Ganter, the defendant in execution, at the time of the service of the garnishment, ahd his answer so stated. It was one of the class of persons which, under our statute, may be summoned as a garnishee ; and the fact that the defendant in the execution was then suing for the same money, was no defence. The defendant was not the less a debtor of Ganter because Ganter was suing for the money.

In the Home Mut. Ins. Co. v. Gamble, (14 Mo. 407,) this court held that a judgment debtor might be summoned as a garnishee when there was a stay of execution and the garnishment was served during the stay. There was no defence in the defendant’s answer, and judgment should have been rendered upon it; but, inasmuch as the garnishee is entitled to some allowance for answering, the case will be sent back. to the Circuit Court for adjustment.

Judgment reversed and cause remanded.

The other judges concur.