132 Mo. App. 449 | Mo. Ct. App. | 1908
August Hoppe died intestate in the State of Florida in February, 1904, leaving several children as his heirs. Two of these, defendants Fred and Louis, figure in this controversy.. There was administration of the estate in Florida and deceased having eight thousand dollars in this State, the defendant Schmitz was appointed administrator of the estate here
With the exception of the introduction of the notes in eAddence, the entire case was tried on the pleadings. The defendant Fred was served by order of publication but did not- make an appearance. Defendant Schmitz was summoned as garnishee; so it may be said that he occupies a double relation to the case, and he filed two ansAvers, one as defendant and the other as garnishee, though there were no interrogatories filed. Each of the answers was under oath.
As the answers were sworn to defendant contends that the notes should not have been admitted in evidence Avithout proof of their execution. We think the point not well taken. The denial of execution under
As there were no interrogatories filed, and as defendant Fred did not appear, we have to determine the case from the petition, the defendant Schmitz’s answers and the replies thereto. It was alleged in the petition that the notes were executed by Fred; that he was the son and one of the heirs of August Hoppe who died in Florida leaving an estate of which Fred was entitled to one-fifth; that deceased left in Livingston county, Missouri, eight thousand dollars and that he did not ■owe any debts; that defendant Schmitz had been appointed administrator in Livingston county; that defendant Fred was a non-resident and was either insolvent or had concealed his property so as to hinder and delay his creditors; and that unless his interest in his father’s estate in the hands of Schmitz as administrator, be subjected to the payment of debts, creditors would lose their claims.
The answer of Schmitz as garnishee (no interrogatories being filed as already stated) was, 1st, That at the time he was summoned as garnishee he did not owe defendant Fred anything, nor did he have anything of his in his hands or under his control. 2nd, That he was summoned as garnishee as administrator prior to an order for final distribution, or for payment of legacies, or the allowance of a demand. 3rd, That the estate was in course of administration by garnishee, which administration was only ancillary, the domicile of deceased at his death being in Florida and the
The answer of defendant Schmitz as administrator, was a general denial; and that August Hoppe had at his death $8,000 on deposit in the First National Bank of Chillicothe; that- he- was duly appointed as administrator and that he took charge of such money. The remainder of the answer is, in substance, the same as he made as garnishee.
The plaintiff’s reply to defendant’s answer as garnishee, admits that August Hoppe died in Florida Avhile
• The answer of defendant Schmitz as garnishee may be put aside since there were no interrogatories to which such answer could find application. However, as we have already stated, the answer which he filed as administrator was practically the same thing. The petition, the answer as administrator and the reply present everything discussed by. counsel' and these pleadings must of themselves support the judgment, else it cannot stand. The judgment or decree entered in plaintiff’s favor is not a decree enjoining defendant from paying Fred any money, as was affirmatively prayed in plaintiff’s petition. But under the general prayer for further relief, the judgment is that $1,000, be paid absolutely out of the funds in the hands of the administrator. We do not think it can find support within recognized rules of law, unless it be in
It is true that the present procedure is what is known as equitable garnishment. [Pendleton v. Perkins, 49 Mo. 565; Stratton v. Ham, 8 Ind. 84; Riggin v. Hilliard, 56 Ark. 476.] “But in equitable garnishment, as in legal process having a similar object in view, nothing more can be accomplished against the debtor ■of the defendant than in a direct suit against the former by the latter. The method used to reach the funds in the garnishee’s hands cannot alter his status, nor enlarge or vary the grounds of his defense. [Karnes v. Pritchard, 36 Mo. 135; Firebaugh v. Stone, 36 Mo. 111; McPherson v. Railroad, 66 Mo. 103.] ‘As the attaching creditor can hold the garnishee only to the extent of the defendant’s claim against the garnishee, and can acquire no rights against the latter, except such as the ■defendant had; and, as he is not permitted to place the garnishee in any worse condition than he would be in if sued by the defendant, it follows necessarily that,
There are instances where there has been what is known as a domestic partition, without the interposition of an administrator, where no debts existed, and there was no hindrance to a distribution, and the title had been recognized in the heir. [Richardson v. Cole, 160 Mo. 372; McCracken v. McCaslin, 50 Mo. App. 85; McDowell v. Orphan School, 87 Mo. App. 386.] Bnt there is nothing in this record to justify such disposition of the present case. It is alleged in the petition that no debts exist against the estate and that the administrator could safely pay the amount of the judgment as being Fred’s distributive share of the estate, but thére is no evidence on that head, nor any attempt to bring the case within the reason of those just cited.
But in this connection the administrator’s answer has an important bearing. He there admits defendant Fred’s title and right to the immediate control thereof, by alleging that Fred had assigned his distributive share to Louis and that he had paid the latter under the assignment before notice of these proceedings. He thereby concedes that nothing stands in the way of Fred’s title and right to his distributive share, save his having made an assignment of it. So if Fred has not made a valid assignment, then, under the particular situation of this case, plaintiff would be entitled to a judgment such as he obtained in the trial court. The matter of the validity of the assignment, that is, whether it was without consideration, or made in fraud
In this connection there is controversy between the parties as to the effect of the pleadings. Defendant claims that his allegations as to the assignment which he makes to his answer are confessed by plaintiff’s reply. He relies upon the proposition .that one. cannot deny and confess and avoid as to the same transaction. [State ex inf. v. Delmar Jockey Club, 200 Mo. 65.] “A plea of general denial does not raise an issue where it is followed by a special plea of confession and avoidance.” [Price v. Mining Co., 83 Mo. App. 474.] “A party cannot traverse and at the same time confess and avoid the same allegation.” [Bank v. Stone, 93 Mo. App. 294.]
But plaintiff is not in that predicament. The pleading here, as has already been stated, is not an admission or confession of the assignment. The assignment is denied, and then it is alleged that “if” there is an assignment in existence it was designed and intended as a fraud on creditors. We do not consider this to be an admission. The rule stated in the cases last cited is no more than that inconsistent pleas must not be made to the same transaction. But the inconsistency should amount to incompatibility. Thus you may deny the execution of a note and plead that you paid it. For, though forged or obtained by fraud, you may still have paid it. [Nelson v. Brodhack, 44 Mo. 596.]
We are not unmindful of the suggestion which may be made that since plaintiff has set up a special cause why there was no assignment, he should be held to prove that cause; and, therefore, since there was no evidence on the subject the assignment must stand admitted. That suggestion would be well' made were it not that plaintiff by the general denial denies that there
The judgment should be reversed and the cause remanded.