156 Mo. App. 98 | Mo. Ct. App. | 1911
On the 30th of December, 1907, plaintiff commenced action by attachment against one Hassler on an account for an alleged indebtedness of |85, the action having been brought before a justice of
The evidence in the circuit court was presented solely by depositions, taken on behalf of plaintiff, the depositions being those of the treasurer of the appellant and its bookkeeper. By these depositions it appears that defendant Hassler is a sales agent in the employ of the garnishee, on commission, having been so at the time of the service of the garnishment and down to the taking of the depositions, his employment commencing under a contract of date June 20, 1907. The contract was put in evidence by plaintiff as part of the depositions, and is abstracted very fully. It appears by that that Hassler was employed by the garnishee as a sales agent for the sale of cash registers in named territory solely on commissions, it being provided that appellant, the garnishee, may retain out of the commissions coming to defendant $500 as a deposit and security to protect it against loss on amounts charged back, the balance so retained to be paid defendant on final settlement, the company, garnishee, also agreeing to advance Hassler on commissions such sums as it may deem proper and just, charging the advancements to his account. It is further provided that Hassler is to pay his own expenses, the company paying none of his traveling, office or other expenses, for which Hassler is to contract in his own name and under-no circumstances to hold the company liable or responsible for them, and it is also provided that Hassler, in proportion to his commission, is to pay his share of all legal collections of commissions and all transportation charges on registers ordered and refused by the customer. It is provided for payment by the company of any debts of the agency, amounts so paid to be charged back to Hassler. Hassler was also to fur
Eespondent, in connection with the deposition, also introduced a statement of the account between the garnishee and Hassler by which account it appears that on the 31st of December, 1907, Hassler owed the garnishee $680. It further appears that on January 2d and each week, from that date on to February 20th, the garnishee had paid Hassler $60 cash, charging him with other amounts and crediting him with commissions. On the 20th of February, it appeared that Hassler owed the-garnishee $802.36. The bookkeeper, whose deposition was taken on behalf of plaintiff, respondent here, testified that these weekly payments of $60 cash advanced to. defendant were charged to him on account of commissions that may have been or were to be earned, being-advances to him. So also the account itself showed. Neither of the witnesses gave any testimony tending to show that these weekly payments were on account of salary. Nor was there any evidence, either by witnesses or by the terms of the contract, that defendant was on a salary, and there was no testimony in the case other than by these two witnesses, whose depositions were taken on behalf of plaintiff. Neither of the witnesses gave any explanation than as stated above why these advances were made. Counsel for respondent, and apparently the learned trial court, treat these weekly payments of sixty dollars a week as payments on account of salary and claim that between the time of the-service of the garnishment and the answer of the garnishee two or more of these sixty dollar payments had been made. On that theory the learned trial court based its. judgment against the garnishee for the $85 debt claimed to be due by defendant Hassler to plaintiff.
Counsel for respondent calls attention to the fact .that it does not appear from the abstract when the-notice of garnishment was served and that the proceedings of the circuit court are to be presumed to be correct
From the testimony produced by plaintiff itself, it is obvious that at those dates the garnishee was not indebted to defendant Hassler in any amount whatever. To the contrary, at that date, Hassler owed the garnishee $680. Between that date and the date of answer, Feb
We are compelled to say that on an examination of the testimony we are unable to sustain the conclusion arrived at by the trial court. .
Over and above this however, is a proposition which strikes at the very root of plaintiff’s case. Defendant was never in court by personal service; all the service in the case was by publication. Defendant never appeared and the jurisdiction of the justice to render any judgment in the case against defendant must depend upon the fact that the court had obtained jurisdiction over, defendant Hassler at the time of the service of process on the garnishee by attachment or levy upon and seizure of property then in this state, in the hands of appellant and belonging to defendant. No personal judgment could be rendered against Hassler, for he was never actually served and never appeared. The only possible judgment on this kind of service was a judgment against his property in the hands of appellant which had been actually seized under the writ of attachment and service of notice of garnishment. Unless that was done, neither the. justice originally, nor the court
The McCord & Nave Mercantile Company Case has been cited in many other decisions, not on this point, it is true, but always approvingly and has never been ad
The result is that the judgment of the circuit court in this case, in so far as it adjudges the garnishee liable, must be and is reversed. That part of it allowing the garnishee $15 for its costs is affirmed. The garnishee