28 Mo. 304 | Mo. | 1859
delivered the opinion of the court.
The facts and dates in this case are a little complicated, but when understood will, we are inclined to the opinion, not entitle the plaintiff to recover. This suit was begun on the 12th of September, 1856, and the petition substantially sets forth that on the 8th of August, 1855, A. Daniels delivered to the defendants to be stored for and on account of the plaintiff three hundred barrels of cement; that on the delivery of the cement the defendants, by their agent W. Harlow, gave their receipt whereby they agreed to deliver up the cement on the return of the receipt endorsed by the plaintiff; that in May, 1856, the plaintiff tendered the receipt endorsed by him, but the defendants failed to deliver the cement, which was worth seven hundred and fifty dollars. The answer of the defendants admitted the delivery of the cement and the giving of the receipt. It averred that on the day the receipt was given the plaintiff signed a writing, whereby he acknowledged to have received said receipt given by the defendants to Daniels, and that he held the same as security for the payment of a promissory note for four hundred dollars, drawn by Daniels, and which he promised to redeliver to
On the trial, which was by the court, the plaintiff gave in evidence the receipt for the cement described in the pleadings ; also the record, which was excepted to, of a suit in attachment begun by Brady &■ Brady against Daniels, in which the plaintiff Miller was summoned as a garnishee on the 26th of May, 1856. Miller answered the interrogatories filed in the said suit, to the effect, that at the time he was garnished, Daniels was indebted to him in the sum of four hundred dollars, and as collateral security for the payment of the same Daniels placed with Mitchell, Rammelsberg & Co. three hundred bushels of cement on his account and subject to his order, for which they executed to him their receipt for the same; that before he was garnished he instituted suit (meaning this suit) for the recovery of the value of said lime, in the St. Louis court of common pleas against the said Mitchell, Rammelsberg & Co.; that said Daniels did after the said suit against Mitchell, Rammelsberg & Co. and the said garnishment pay him what he owed him. The answer then concludes in these words: “I therefore answer that whatever judgment I shall have and obtain against the said Mitchell, Rammelsberg & Go. will be the amount in my hands belonging to said Daniels. Outside of which I have no other property, goods, chattels, effects and credits belonging to the said Daniels, nor in any other manner than as aforesaid indebted unto him.” This answer was made 22d December, 1857. In May, 1857, final judgment was taken in the attachment suit against Daniels, the defendant, for $582.20, and afterwards, on the 10th of Feb’y, 1858, judgment for $658.30 was ordered against the garnishee Miller in this suit. It was
Take this case in the most unfavorable light for the defendants that the legal title to the cement was in the plaintiff, and that at the time of the garnishment the defendants had no right or property in it; what then would have been the rights and duty of the plaintiffs? The possession of the cement was not in the plaintiff, nor was it understood that it should be until default was made in the payment of the debt due to him by Daniels. The fact that the plaintiff was garnished did not oblige him to institute a suit to recover the cement. There is no law imposing this burden on a garnishee. This suit had not its origin in the belief that there was any such obligation resting upon the plaintiff. So far from it, it was instituted before he was garnished. The petition in the case shows this and the object of the suit. Whether he was garnished or not, the only interest he had in the cement amounted only to as much as would satisfy his lien or mortgage. As this mortgage was satisfied he would only have been entitled to a judgment for costs. As the cement was not in the possession of the plaintiff, if there was an interest remaining in Daniels after the lien was satisfied subject to attachment, it should have been attached in the hands of those who held it. The possession not being in the plaintiff when he answered, he should have surrendered the receipt, as his debt had been paid and he had no other interest in it, and the right to the cement would have been con
If, after the plaintiff was garnished, the property, not being in his possession, was made away with, he would not have been bound for it, nor would the law require him to bring suit. If it was made way with before the garnishment, all that was necessary to be done was to have delivered up the receipt at the time of the answering. If the cement had been in the possession of the plaintiff when he was garnished, he would have been bound to have held it as any other garnishee. But he might have given up the property to satisfy the judgment in the attachment suit against the defendant and thereby prevented any judgment against him. If the plaintiff had endorsed the receipt and surrendered it into the custody of the law, as he ought to have done, his debt being satisfied, could there have been a judgment against him personally ? This might have been done under the twenty-eighth and thirty-fifth sections of the attachment law. By
This is not like the case where a debtor is garnished who discloses all the facts in relation to the debt wiito®^^!%w-ledge up to the time of answering, and is pay it to the creditor in the attachment st not be compelled to pay it again, and tli him in the attachment suit is conclusive i£ there is no judgment against a garnishee^ has satisfied and his original creditor seekin| to pay it a second time. But a garnishee hasTBB^Sessarily and without authority submitted to make an answer in an attachment and suffered a judgment to go against him, and is now prosecuting this suit in order to indemnify himself against the judgment, which by his own conduct' he has caused to be rendered against him, and would make that judgment binding against a party, who may have a valid defence to the action in which it was rendered, and who has had no opportunity to make that defence.
It is singular how this and the attachment suit are made to^move in a circle. In the attachment suit, the plaintiff in his answer says he will owe Daniels what he shall recover in this suit. In this suit he recovers what was recovered against him in the attachment suit. As the plaintiff at the time of his answer in garnishment had no interest in _the property, he should have surrendered up the receipt and not have suffered judgment to go against him, and his doing this-did not make the proceedings in that case evidence in this against the defendants.
Judgment therefore will be reversed and the cause remanded.