195 Mo. App. 417 | Mo. Ct. App. | 1917
The appeal herein involves the validity of a garnishment obtained in a justice court. In the case of Peycke Brothers Commission Company v. Sandstone Co-operative Company, the justice, on January 24, 1914, rendered judgment in favor of .plaintiff for $326.30, and said judgment became final. Notice of garnishment was served upon the garnishee May 9, 1914. The garnishee denied that it had in its possession or under its control any property of the Sandstone Co-operative Company or was indebted to it in any way. This issue was tried before the justice on June 16, 1914, resulting in a judgment against the garnishee for $267.66.. Appeal was taken to the circuit court where- the matter was tried anew and judgment was again rendered against the garnishee for said amount, and it has brought the case here.
The contention of garnishee is that the evidence discloses no debt, subject to garnishment, owed by the garnishee to the Sandstone Co-operative Company. If this is true, the other points made concerning the admissi-' bility of certain parts of plaintiff’s evidence need not be considered. Passing then, the question whether plaintiff’s evidence is admissible in its entirety, the facts upon which the garnishment rests may be stated thus:
The Sandstone Co-operative Company, located at Brookport, Minnesota, shipped a carload of cabbage from that point to Kansas City. The Great Northern Railway Company was the initial carrier and the shipment was upon a bill of lading to shipper’s order with directions to the carrier to notify Peycke Brothers Commission Company at Kansas City. The bill of lading, with a draft for $267.66 attached, was sent to a Kansas City Bank. The Chicago Burlington & Quincy Railway Company was the terminal carrier and it had an arrange-, ment with Peycke Brothers Commission Company whereby, under a bond given to indemnify the carrier, the latter wmuldudéliver shipments to the Commission Company as they arrived without demanding the bill of lading. When the carload of cabbage arrived, the Burlington delivered it to the Commission "Company who unloaded and disposed
In the meantime, the Sandstone Company recalled the draft and bill of lading, and the same never reached the Commission Company, and, the shipment being to shipper’s order, the title to the shipment never passed. The delivery of the car by the Burlington, without requiring the bill of lading to be surrendered, was unauthorized, and upon demand by the Burlington for payment to cover invoice price of the car, Peyeke Brothers Commission Company paid to the Burlington agent $267.66 on April 27, 1914. ' As stated, notice of garnishment was served upon the Great Northern Eailway Company May 9, 1914. Plaintiff claims, however, that, there is evidence tending to show that the Burlington agent collected said money for the Great Northern and was holding it for that railway company at the time of service of notice of garnishment and at the time of the trial in the justice court, to-wit, June 16,1914. (We will notice this claim as to the evidence later.)
The burden is upon the plaintiff to prove the answer of the garnishee is not true. [Davis, Garnishee v. Knapp, 8 Mo. 457.] The question then is, does the evidence disclose any debt due from the Great Northern Eailway Company to the Sandstone Co-operative Company which is subject to garnishment under the rules of law applicable thereto 1
The delivery of the car by the terminal carrier, the Burlington, was unauthorized, and this, under the interstate Commerce Act, rendered the initial carrier, the Great Northern, liable either in tort for the conversion of the car of cabbage or on contract for breach of the
"When the 'testimony of this agent failed to support plaintiff’s theory, plaintiff introduced, over garnishee’s objection, a stipulation of the attorneys, filed in the justice court at’ the trial of the garnishment proceeding, as to what the agent’s testimony would he if he were then present. Without regard to whether this stipulation was admissible at the trial in the circuit court, it says nothing about collecting said money as agent for the Sandstone Company. The evidence, therefore, cleárly failed to show any authority or ratification on the part of the Sandstone Company of the collection of said amount by the Burlington agent.
Besides, we think this stipulation shows on its face that it was for use only at the trial in the justice court. It was not an agreed statement of facts, but only an agreement that the agent would, if present, testify that he collected the money for the Great Northern and still held it for the Company. But at the trial in the circuit
Authorities relating to cases of equitable garnishment can have no application here, since the case originated in a court having no equitable jurisdiction. Consequently, the garnishment cannot be sustained on the theory that the garnishee may be treated as a trustee holding funds which in good conscience belong to the Sandstone Company. Besides, to treat the garnishee as a trustee of the Sandstone Company, without the latter’s consent, is to violate the rule hereinabove announced.
The judgment is reversed.