Morrison v. Morrison

287 S.W. 792 | Mo. Ct. App. | 1926

^* Corpus Juris-Cyc. References: Garnishment, 28CJ, p. 50, n. 82, 84, 85, 86. This is an appeal from a judgment of the circuit court, in favor of plaintiff and against defendant, in a suit on a note. On April 11, 1923, Peter H. Morrison, the plaintiff, filed a petition in attachment against the defendant, William N. Morrison. The petition alleged that, on October 14, 1903, defendant executed a note, payable to the order of plaintiff, in the sum of $1155, due one year from date, with interest; that on February 25, 1907, defendant paid on account of interest, $53.42; on December 15, 1911, the sum of $112.75; on April 1, 1918, the sum of $5; and on June 1, 1918, the sum of $5. On the same day the suit was filed an order of publication was granted, returnable to the June term, 1923, and a writ of garnishment was issued. The sheriff's return shows that, by order and direction of the attorney for plaintiff, he executed the writ on the 12th of April, 1923, by declaring in writing to plaintiff, who was the executor of the estate of Cornelia H. Morrison, that he attached in his hands all goods, moneys, etc., of defendant, and that he summoned said plaintiff executor as garnishee to appear before the circuit court to answer interrogatories. Plaintiff later filed interrogatories to be answered by himself as executor of the estate of Cornelia H. Morrison. He then filed his answers to the interrogatories he had propounded to himself as garnishee, and admitted that at the time of the service of the garnishment he had in his possession and under his control, $4000, belonging to defendant, which had been ordered by the probate court paid to said defendant. Thereafter, at the June term, a special judgment was rendered in favor of plaintiff and against defendant in the sum of $2519.82. On the same day plaintiff, as executor, was ordered to pay the amount of the judgment into the registry of the court. Thereafter, and at the same term, defendant appeared specially, and limited his appearance solely to the purposes of a motion to set aside the judgment, in which he alleged that plaintiff had procured an order of publication and an order of attachment. The motion sought to set aside the judgment on the ground that the court acquired no jurisdiction because of the services of the writ of attachment and garnishment, and because the judgment was void on the ground that plaintiff could not summon himself as garnishee. This motion was by the court overruled, and defendant filed his term bill of exceptions.

Afterwards, defendant filed a petition to set aside the judgment under sections 1784 and 1785, Revised Statutes 1919. Upon a trial had on the issues joined under the last-named procedure, plaintiff had a verdict and judgment against defendant. There are certain objections made to the form of instructions and to the evidence upon this trial being sufficient to support the judgment. But in our opinion it is unnecessary to go into these questions in detail.

The first question raised by appellant, namely, that the judgment was void because plaintiff could not summon himself as garnishee, must, in our opinion, be answered in favor of appellant's contention. It is an unusual proceeding to permit a plaintiff to sue himself, and the fact that he may be executor would not alter the situation. The question as to whether or not plaintiff may summon himself as garnishee has not been dealt with directly by the courts of this State, and the decisions in other jurisdictions are at variance upon the question. It is insisted by counsel for respondent that the particular wording of the statute should govern, and that there is nothing in our statutes indicating that such a course would not be permissible. However, the authorities do not seem to deal with the question purely from the standpoint of the wording of the statute. In 28 C.J., p. 50, it is said:

"Under the foreign attachment custom of London, from which the remedy of garnishment was derived, plaintiff could summon himself as garnishee, and this practice has been allowed to a considerable extent under the garnishment statutes. But the better considered cases and, seemingly, the weight of authority, is to the contrary, This conflict seems to be irreconcilable. The terms of the statute vary, of course; but the decisions pro andcon are usually based upon general considerations. The rule against allowing plaintiff to make himself garnishee is based upon the lack of necessity for resort to garnishment and the inaptitude of the remedy in such cases, and upon the adversary character of the proceeding against the garnishee. And accordingly it has been held that plaintiff cannot make himself garnishee even where his positions as plaintiff and garnishee respectively are in different capacities."

The authorities are not in accord, and an examination of the same reveals that plausible reasons are suggested both for and against permitting plaintiff to garnishee himself. However, the better rule seems to be, as well as the weight of authority, that a plaintiff should not be permitted to garnishee himself, especially when he is acting in the capacity of administrator.

The textwriter in Waples on Attachment and Garnishment, page 294, section 406, says:

"If the attaching creditor is the administrator of an estate, he cannot garnish himself so as to reach the funds in his own hands and render them available to subserve his own interest as attaching creditor."

In support of this statement is cited the case of Hoag v. Hoag,55 N.H. 172. Many other states hold likewise, including Alabama, Iowa, Rhode Island, Massachusetts, Kansas, and Ohio.

To permit plaintiff to summon himself as garnishee would certainly create a conflict of interest between himself, in his individual capacity, and while acting as administrator or executor in handling a fund belonging to some one else.

Accordingly, the judgment of the circuit court is reversed, and the cause remanded. Daues, P.J., and Becker, J., concur.