57 Mo. App. 213 | Mo. Ct. App. | 1894
— The respondent, J. O. G-eyer, was duly summoned as garnishee on two executions issued from the circuit court of Newton county. One of said executions was issued'upon the transcript of a judgment rendered by a justice of the peace for the sum of $29.50, debt and damages, and $11.10-costs. The other was an execution for costs in said circuit court amounting to $7.80. Both executions were in favor of A. L. McQuarry and against Laura Duff.
In response to interrogatories filed by appellant,, the garnishee answered, denying any indebtedness at the time of the garnishment, or since, to said Laura Duff, and denying that at the time of said garnishment, or since, he had any money, property or effects belonging to said Laura Duff, and further answering, to wit: ‘‘That on the twenty-first day of January,. 1893, he was employed and requested by E. Walsh,, trustee of Elizabeth Jarrod, to make up the papers. in a loan which the said Elizabeth Jarrod was about to-make to said Laura Duff, and also to examine the-title to certain. real estate which said Laura Duff had offered as security for said loan. That, pursuant, to said employment request (sic), he made out a. promissory note for $500 and a deed of trust from said Laura Duff in favor of said Edward Walsh, trustee for Elizabeth Jarrod, upon certain real estate to secure the loan. He also examined the title to said real estate,, and, in the course of such examination, found of record in the office of the clerk, of the circuit court of Newton county, Missouri, a transcript judgment in favo'r of A. L. McQuarry and against said Laura Duff, and
To this answer appellant filed a denial, the mate'rial part of which is as follows: “Plaintiff states that Laura Duff executed her note to Elizabeth Jarrod for the sum of $500, secured by a deed of trust on certain real estate, and that said Elizabeth Jarrod delivered to said garnishee the sum of $500 to be paid to said Laura Duff according to her contract with said Laura Duff; that said note and deed of trust were executed and delivered before the said sum of $44.30 was held back, and said Laura Duff did not execute her said promissory note
‘ ‘Plaintiff, therefore, says said garnishee ought not to be allowed to retain said sum in his hands, and plaintiff asks judgment against him for said sum with interest and costs of suit.”
The cause was tried by the court, neither party requiring a jury. The one witness introduced, J. C. G-eyer, the garnishee, testified that he was employed by E. Walsh, trustee for Mrs. Jarrod, to prepare the papers for the loan of $500 to Laura Duff; that he did so, and Laura Duff gave her note for that sum, and executed a deed of trust to secure the same; that, before the delivery of the note, he discovered the existence of appellant’s judgments; that the note and deed of trust'
“Q. Was it not understood that, if she didnottake means to settle the judgment, the money was to be applied for that purpose? A. I suppose so.
"Q. You say that Mrs. Duff agreed thát the money should be left with you? A. They agreed that among themselves.
“Q. Suppose she should not have agreed? A. The loan would not have been made.
“Q. You would have advised Mr. Walsh not to have made the loan then? A. Yes sir.
“Q, Was it left for MeQuarry or Walsh or Jarrod? A. As far as I was concerned, for Mr. Walsh, until considered safe to pay it over immediately to Laura Duff when the lien was removed.
“ Q. What did Mrs. Duff say she intended to do with reference to the judgment at the time? A. I don’t think Mrs. Duff understood exactly. She was relying upon her attorneys.
“ Q. I will get you to state if she did not expressly*218 tell you not to pay over that money to satisfy that judgment! A. ■ I don’t remember that she gave express' instructions in regard to it.”
Be-examination of J. O. Greyer: “Q. I understood you to say awhile ago she expressly consented to it? A. Yes sir, to secure Mrs. Jarrod.
“Q. In your answer you stated she demanded the amount of $500, and you advised your clients not to pay it? A. Yes sir.”
The court thereupon rendered judgment in favor of the garnishee and discharged him. After the overruling of his motions for a new trial, and in arrest of judgment, appellant took an appeal to this court.
No declarations of law were given on the trial in the court below, and no exceptions were preserved as to the admission or rejection of evidence. It follows, therefore, that, if the judgment of the lower court can be sustained upon any theory of law applicable to the facts developed on the trial, it must be affirmed.
It may be conceded, as urged by appellant, that the issues in garnishment proceedings are made up, not by interrogatories and answer, but by the denial and reply. B. S. 1889, sec. 5234. Brown v. Gummersell, 30 Mo. App. 345. And it may also be conceded that these pleadings raised the issue as to whether or not the garnishee should employ the $44.30 retained in his hands to pay off and discharge the judgments in appellant’s favor against said Laura Duff. The difficulty is, however, as admitted by appellant, that the evidence sustaining appellant’s theory of this issue is not “clear and definite.” On the contrary there is substantial evidence that this sum was retained by the garnishee for the indemnity of Mrs. Jarrod, and that it was only to be paid over to Mrs. Duff when she produced evidence of payment of the MeQuarry (appellant’s) judgment, which judgment Mrs. Duff claimed was invalid. As
Respondent has filed a motion in this case for an allowance as garnishee under sections 5219 and 5239, of the Revised Statutes of 1889. This motion is accompanied with a statement of the outlays necessarily incurred by him in defending this appeal, supported by affidavit, to wit: $7 for printing brief and $25 counsel fees; total, $32.00
We think the motion should be sustained. Keating v. American Refrigerator Co., 32 Mo. App. 297. It is, therefore, ordered that the judgment herein be affirmed, and that respondent recover an allowance for $32 as garnishee herein. It is so ordered.