Lindell v. Benton

6 Mo. 361 | Mo. | 1840

Opinion of the Court delivered hy

Tompkins Judge.

This is a proceeding, instituted in the circuit court of St. Louis county, by Lindell against the president, directora and company of the Bank of Missouri. The plaintiff, Lindell, obtained a judgment against the Bank, but not being able to make the money on execution, he caused an attachment to be issued on the 18th day of July, in the year 1837, which was returned, “executed by summoning Thomas II. Benton and George H. Kennedy, as garnishees, fo answer such interrogatories as might be exhibited against them by the plaintiff, touching their indebtedness to the president, directors and company of the Bank, defendants in the writ of attachment. The garnishees moved to be discharged: Because, 1st, At this date there is no such' corporation existing as the president, directors, &c., of the Bank of Missouri, the charter thereof having expired, according to the original act of incorporation. 2d, Neither in the said writ of attachment, nor in the execution, nor in the praecipe, ordering tho same, are the names of the garnishees, or of either of them, mentioned; nor has the sheriff shown, by his return, that there was any property of the defendants in the hands of the garnishees, or of either of them. 3. The execution issued in ’ _ this case is irregular and void.

1st, The act to incorporate the stockholders of the °f Missouri, passed the 31st of January, 1817, continued' irj force till the 1st day of February, 1838. This writ was is-sued on the 18th day of July, 1837, when the Bank had a existence for the purpose of holding property, and any of its property,, or of the debts due- the Bank, attached at that time, will- be liable to be disposed of on the authority of that writ, if it were duly issued.

2d. Was this attachment duly issued?

The 8th section- of the act to- regulate proceedings against-corporations, (p.-126 of the digest of 1835,) directs, that “in J case the sheriff,.or other officer,, shall return upon any writ' ‘ of fieri facias, that no goods and chattels, lands and tene- * ments, can be found whereon- to levy, &e., it shall be the ‘ duty of the circuit court, on the application of the plaintiff ‘ or his attorney, to issue a writ of attachment against the- ‘ rights and creditors of the- corporation, reciting the judg- ‘ ment, execution and return,- and directed to the sheriff of ‘ the county.” The ninth section declares, that, ‘such- at- ‘ tachmcut shall .be executed by summoning,- as garnishee, ‘ any person having moneys, or effects, belonging to:such ‘ corporation, and any debtor to such corporation who may ‘ be found in his county, to appear before the circuit court ‘ at the return of the writ, and then and there answer; touch- ‘ ing any moneys or effects of such corporation in his hands, ‘ or any debt he may owe to the same;” and- the tenth- sec- ‘ tion provides, that “from the time of making such service, ‘ all moneys and effects due and owing, payable-or belonging ‘ to such corporation, shall be bound until the judgment is ‘ satisfied.” *

A writ of fieri facias had been returned by the sheriff,.and, from that return, it appeared that no property was found belonging to the bank;- and this writ of fieri facias was recited in the writ of attachment. But by the 11th section of the same act, it is declared, that proceedings against garnishees, under this aet, shall be- the same as against absent and absconding, debtors;- and it is, therefore, contended, that a debtor of the Bank- could not be- summoned, unless he were either named in the writ, or directed to be summoned by the plaintiff, or his attorney. Because, it is said, that under the-provisions of the 7th section of the act to provide'for the re-eovery of debts by attachment,-(p. 77 of the digest of 1835,) none could be summoned but such- as were either named in the writ, found in the possession of goods,- &c. not actually seized by the officer, or such as were directed to* be summoned by the plaintiff,-or his attorney.- If such-were the law of the section last above-citedy still it has, in my opinion, no application to the case;’ for' the’direction* of the eleventh section relates'to such proceedings-as: may be had against garnishees, after' they have- been made- such by being summoned to appear in court. But by this seventh section of the act to provide for the recovery of debts by attachment, it is expressly provided, that the officer may summon debtors, and it is not required that the names of such debtors shall £e either inserted in the writ, or that they shall be given to the officer, either by the plaintiff or his attorney. The section reads thus: “all persons shall be summoned as garni* shees, who are named as:such in the writ, and such others ag the officer shall find in the possession of goods, money or effects of the defendant, not actually seized by the officer,- and debtors of the defendant, and also such as the plaintiff or his attorney shall direct.” The writ of attachment, It- has been shown, recites the execution; it shews that no goods the Bank were to be found; under this writ; the summons, as has also been shown, was regularly served on the defen„ dants, as debtors of the Bank, on the 18th day of July, 1837; the charter of the Bank did not expire till 1st day of ry, 1838, six months after the defendants were summoned as garnishees; and it is provided, by the 10th section of the ° is act to regálate proceedings against corporations, that, from the time of making such service, all moneys and effects due and owing, parable or belonging, to such corporation, shall be bound until such judgment is satisfied; and no payment made thereafter to such corporation, or other disposition, of such debts, &c. so attached, shall be credited to the making the same.

In a writ of ¡gsue<i against section of the p°0e“fd-against ^7c.r.i835,p.' I26d 11 is not necessary to mention the garnisheis**115 neither, is ir that ThP'slic-sh°uF that he had beer* directed by the plaintiff ney, *to mm"

The corporation then having a legal existence, at the time the defendants in the attachment were summoned, it does not affect the rights of Lindell, that its charter had when the circuit court was moved to discharge them. But it has been shown, tnat it is not necessary'that the defend* ants should either- have been named in the writ of attach* raent, or that it should appear by the sheriff’s return, that he had been directed by the plaintiff, or his attorney, to sum-^iem: R remains then, only, to enquire whether the execution issued was irregular and void, as was-thirdly char-by the counsel For the defendants.

gularly com-ágainst a poi-ation, are not aflected by tho charto/bo-fore the deter-such proceed- execution, re-fuedlhas been returned whole or S part, another may bo issued at any tíme withoutre sorting to a facias to^re-yivo the .ludgment. (See Dows-ÍMo^'a °tt0r •518.)

The record shows that, in less than one. year after the . , J was .rendered against the Bank, an execution was issued and returned not satisfied, no property being found-The case of Dowsman vs. Potter, 1st volume of Missouri decisions, shows that in such case another execution maybe issued at any time thereafter, without resorting to the writ. of sci. fa. The court there declared, that they .could see no use Rav*n§ continuances of the executions entered, ac* to the practice of the English courts,, saying, it is a mere form, and that they were opposed -to adopting fictions udless seme good end can be answered thereby. This being , , , , . tne only objection to the execution, which preceded the attachment, and, immediately after the return of which the older for issuing the attachment was made, it-is my opinion ^is .execution was not irregular -and void, as the defendants counsel have supposed, in their .third reason for dis- , . ~ , , charging them from-the attachment.

circuit eourt> then, in my opinion, committed error in sustaining the motion for discharging -the defendants from this attachment,-and its judgment -ought to be reversed, and .Judge Napton concuning., it is reversed.