19 Mo. 625 | Mo. | 1854
delivered the opinion of the court.
In this case, the following statement of facts is agreed upon by the counsel of the parties :
“ Pratte & Dickson having a judgment against Gridley, issued an execution, and summoned Scott & Otis as garnishees of Gridley. The garnishees answered and showed that, at the-time they were so summoned, they had a consignment in their hands belonging to Gridley, on which they had made large advances; that the consignment was unsold when they were summoned ;
The statute permitting debtors of the defendant in an execution to be summoned as garnishees, has been more than once before this court for construction and interpretation.
In the cases of Van Winkle & Randall v. McKee, defendant, and Baum, garnishee, 7 Mo. Rep. 435; Lee et al., v. Faber & Watson, 8 Mo. Rep. 322, and Wood v. Edgar, 13 Mo. Rep. 451, it can be seen that this eourt regards the statute permitting the garnishing on execution as much more limited and restricted than the garnishing in original suits by
In the case of Wood v. Edgar, 13 Mo. Rep. 451, it was held, that a special deposit of coin did not make the depositary a debtor, within the meaning of this statute, allowing garnishees to be summoned on execution. The court said : “ We do not understand that, under this act, a person having possession of property of the defendant in the execution, can be garnished.” Such person must be a debtor of the defendant before he is liable to this process.
Now it appears that the garnishees in this case were auctioneers, and as such had received, on consignment, property belonging to Gridley, the defendant in the execution, on which they had made advancements; that the consignment was unsold when they were summoned; that, before the sale of the consignment, and after they had been garnished on the execution, they were summoned as garnishees in a suit of original attachment, wherein Laureal & Taylor were plaintiffs, and the Said Gridley, defendant, and this suit was still pending in the St. Louis Court of Common Pleas. Under the principles laid down in the cases heretofore before this court, these defendants were not debtors to Gridley when they were garnished; the relation of debtor and creditor was not existing between them, and they were not liable to be summoned as garnishees on execution. In attachment suits, garnishees need not be debtors ; they may be garnished if they have property of the defendant in their possession. The relation of creditor and debtor need not necessarily exist between them. Not soj when garnished on execution. We, therefore, adhering to the former decisions upon this subject, which we think are the true' and correct interpretation and construction of these statutes-, do reverse the judgment below,