Peter Hauptman & Co. v. Richards

85 Mo. App. 188 | Mo. Ct. App. | 1900

ELLISON, J.

— Thomas Whittle was summoned as garnishee of defendant Richards in a suit instituted by attachment before a justice of the peace. Richards was a nonresident of the county.’ There was no property attached, the only thing apparently in reach being a small stock of merchandise in Whittle’s possession but which plaintiff charged to belong to defendant Richards. Interrogatories were filed and answered by Whittle in which he stated that he had no money or property of defendant’s in his possession or control. Plaintiff denied the answer. Afterwards, the case on the garnishment came on for trial and on the motion of the garnishee the justice dismissed the garnishment. Plaintiff appealed to the circuit court.

In the latter court the garnishee again moved to dismiss the garnishment proceedings on the ground that the court had not jurisdiction to try the case. The motion was overruled. On trial the garnishee demurred to the evidence for plaintiff which was overruled and there was a verdict and judgment against the garnishee.

A motion for new trial and in arrest of judgment was filed and overruled. The garnishee appealed. The motion in arrest assigned two grounds: Eirst, “that the judgment on the face of the records is erroneous.” And, second: “Because the court had no jurisdiction to try the cause.”

It nowhere appears, either, in the record of the justice of the peace or in that of the circuit court that any judgment was ever rendered against the defendant Richards. The law is settled by the statute and adjudications, as well as the statement of text writers, that before a judgment can be entered against a garnishee one must have been rendered against the principal defendant. R. S. 1889, sec. 5232; Miller v. Anderson, 19 Mo. App. 71; Drake on Attachment, sec. 460. A judgment against the principal defendant is the foundation upon which that against the garnishee must rest; and one prosecuting a garnishment should show that he has a valid judgment against the defendant before having one entered against the garnishee. The burden was on him and not the garnishee.

Though a garnishee would not be bound by a void proceeding against the principal debtor yet he must ordinarily protect himself in a proceeding of this character and that is what the present garnishee is now doing. If this was some proceeding after a final judgment against the garnishee in which he was attempting to avoid a judgment against him, then the suggestion made by plaintiff would find application. The view we take of this case is sustained by McCloon v. Beattie, 46 Mo. 391, and is not opposed by the other authorities cited by plaintiff.

The point is also made that garnishment will not lie for the reason that the goods were in view of the constable and should have been attached by a manual seizure. The statute, declares that there must be an actual seizure where the property is “accessible.” But we decided at this term that if the property is in the hands of a third person, claiming it, it was not accessible in the sense of the statute. Westheimer v. Giller.

Garnishee’s demurrer to the evidence should have been sustained. The judgment is reversed.

Smith, P. J., concurs; Gill, J., absent.