43 Mo. App. 5 | Mo. Ct. App. | 1890
This is a garnishment on execution. The garnishees’ answer denied all indebtedness. The plaintiff filed the following denial:
‘ ‘ The plaintiff denies each and every statement and allegation contained in said answer, excepting that defendant Louis P. Spengler is in the employ of said garnishees. And plaintiff avers and states the fact to be that, at the time of the service of the process of garnishment upon them, said garnishees were indebted to said defendant in the sum of $125, and that, at the time of filing said answer,
The garnishees reply as follows: “ The garnishees deny each and every allegation in said denial contained. And for further reply garnishees say that, at the time they were summoned as garnishees herein, they were not, nor have they since become, nor are they now, in any wise indebted to the defendant. And, further replying, garnishees say that said defendant is now, and for a long time past has been, in the employ of these garnishees; that, previous garnishments at the suit of this plaintiff having been served upon them in the month of April, 1889, returnable to the June term of this court, defendant notified garnishees that he would prefer to quit and leave their employ, rather than incur the risk of having his wages seized under garnishment, and that, although at that time overpaid and in garnishees’ debt, he would insist on having his salary paid in advance or quit, as stated; that garnishees, rather
Under the issues thus framed, the cause was submitted to the court, sitting as a jury, and a verdict and judgment were rendered in favor of the garnishees. Exceptions were saved to the ruling of the court in excluding certain evidence offered by the plaintiff. Na formal instructions were asked by either party. The court of its own motion filed a written opinion, stating its views of the evidence and the law, which opinion is-embodied in the bill of exceptions, and treated in the motion for new trial as a declaration of law made by the court.
The ruling of the court in excluding evidence offered by the plaintiff, and the declaration of law made by the court, are assigned for error.
The record recites: Plaintiff offered in evidence the execution under which the garnishment herein was issued. The garnishees objected to it as incompetent; the court sustained the objection, and the plaintiff excepted. As the judge in his opinion hereinbefore -referred to passed on the merits of the case, and as we are bound to assume that the record before us speaks the truth, the court probably excluded the execution on the theory that, under the rules of court, the execution was part of the original process, and took judicial notice of its contents. No other theory is conceivable, on which the execution could have been legally excluded. Garnishment on execution is not a new suit, but a mere incident or auxiliary to the judgment. Tinsley v. Savage, 50 Mo. 141. The court was bound to take judicial notice of the judgment, because it was a judgment in the same suit. It is only where title is
We may add that, if the execution is made part of the record by the rules of the court in this class of cases, the clerk should set it out as such in making the transcript, and, if not so made, the execution should be received in evidence and set out in the bill of exceptions ; otherwise the appellate court is not placed in a position to review the correctness of the judgment. The execution in this case is set out in full in the bill of ■exceptions, and as the cause was tried before the court, and the court passed upon the merits, treating the execution apparently as part of the record, the apparent error in ruling it out was in no sense prejudicial to the plaintiff.
We have in several cases, where a cause was tried by the court without a jury, and where no instructions were given for either party, but the court filed a written opinion embodying declarations of law applicable to the facts of the case, treated the opinion as instructions for the purpose of reviewing the judgment on appeal. Callahan v. Morse, 37 Mo. App. 189, 204. The declaration of law made by the court, and the finding of facts to which it is made applicable, is contained in the following parts of its opinion :
“ By section 2519, Revised Statutes, 1879, as amended by the act of April 2, 1885 (now re-enacted, R. S. 1889, .sec. 5220) it is provided that no person shall be charged as garnishee on account of wages due from him to a defendant in his employ for the last thirty days’ service; provided such employe is the head of a family and a resident of this state.
“ The plaintiff recovered a judgment against the ■defendant, who is her husband, for maintenance and support. He failed to pay this, and a garnishment was
“There is no room to doubt, under the evidence, that this arrangement was conceived by the defendant, Spengler, with a view to defraud his wife, the plaintiff, out of her just claim against him. This was plainly his pin pose, and this purpose was known to the garnishees, and they have assisted him in carrying out this purpose.
“ But these facts do not entitle the plaintiff here to a judgment against the garnishees, unless the case is thereby taken out of the operation of the statute above quoted.”
The opinion then states in substance that, as it appears in evidence that at the date of the garnishment the garnishees owed the defendant in the execution nothing, and that, since by the contract made between them his salary was payable monthly in advance, it necessarily follows that they did not thereafter become indebted to him at any time in any amount subject to garnishment, because the defendant was the head of a family within'the meaning of the section set out in the opinion.
It does not appear in evidence that the defendant in the execution is the head of a family, unless he is the head of a family by reason of the fact that the plaintiff, who is his wife, who lives apart from him, and whom he fails to support, is the other part of the family, of which
It would seem that the trial court concluded that, under the decisions of Brown v. Brown, 68 Mo. 388, and Whitehead v. Tapp, 69 Mo. 415, the defendant was still the head of a family, notwithstanding the fact that he failed to support his wife who lived apart from him, and who was the only other member. But Brown v. Brown, and the subsequent case of Blandy v. Asher, 72 Mo. 27, were decisions construing the meaning of the term in the homestead act, and that construction of the term was adopted, which gave effect to the manifest purpose of the law in favor of the wife in one case, and in favor of the children in the other. Here the construction is invoked for the purpose of defeating the object of the exemption. As was aptly held in Linton v. Crosby, 56 Iowa, 386, the term, “head of a family,” does not necessarily mean the same thing under all circumstances and in all connections. In Leake O. King, 85 Mo. 413, Judge Sherwood points out the difference between the meaning of the same term in the homestead and execution act, resulting from a difference in the manner of employing the terms, and so does Judge Thompson in Murdock O. Dalby, 13 Mo. App. 41. In Beckmann v. Meyer, 75 Mo. 333, it is held that a homestead once acquired by the head of a family will not be defeated by the death or absence of the wife or children, if the husband or father continues to occupy it, while, in regard to personal exemptions, that view could
It may be said that this court held in State v. Finn, 8 Mo. App. 261, that, to constitute a family,- the members need not reside in one house, and that the man who has a wife dependent on him for support is the head of a family, though they do not reside under the same roof. If this proposition were invoked by the .garnishees on an execution in favor of a stranger, there would be force in it, since, the defendant being compelled by a decree of this court to support his wife, his wages, which are necessary for such support, cannot be taken in execution. But how can such a view possibly be sustained when the execution is for the purpose of supporting the wife and thus carrying out the objects ■of the exemption %
The respondent contends that the argument of the appellant is not admissible under the pleadings. The garnishees’ answer denied all indebtedness, and, until overthrown by evidence, must be taken to be true, •whether it is a simple denial or an affirmation of new matter. Holton v. Railroad, 50 Mo. 151. The garnishees’ answer and reply set up the contract between the defendant and the garnishees, by which the defendant’s wages .were to be paid by them in advance, and further states that they were so paid. It is the good faith of the contract, which the plaintiffs sought to challenge in this proceeding. The court treated the pleadings as sufficient to raise the issue of good faith, and, after finding that the evidence was sufficient to •establish that the contract was made with a view of withdrawing the defendant’s wages from levy upon the plaintiff s execution, and, hence, in fraud of the plaintiff, it further decided that the wages were exempt. It' is settled in this state that the plaintiff in an execution .may occupy a position superior to the execution
In answer to this argument of the garnishees, it may be said that, under the pleadings and evidence, it is at least questionable whether the plaintiff has not made out a case independent of fraud in the contract. If the contract between the parties was such that there was money actually due and owing from the garnishees to the defendant at any time, that is to say, that the contract to pay wages in advance was based upon a sufficient consideration and enforceable, then it would seem that our statute was sufficient to arrest the moneys, paid by the garnishees, as moneys, “owing by him. between the time of the garnishment and the time of his filing the answer.” This view was not considered in Reinhart v. Empire Soap Co., 33 Mo. App. 24, as its. consideration was not essential to a disposition of the-case. We construed the answer in that case as simply stating an advance of the garnishees’ wages from week to week, and hence held, arguendo, that there was. no time between the date of the service of the summons and the date of filing the answer, when the-defendant himself could have maintained an action against the garnishees. Next, it is by no means, clear on the authorities, that fraud in this action must be specially pleaded. In Young v. Glascock, 79 Mo. 574, 577, and in Stern Auction Co. v. Mason, 16 Mo. App. 473, it was held that proof of fraud in'the acquisition of plaintiff ’ s title is admissible under the general, issue in action of replevin. In Cummiskey v. Williams, 20 Mo. App. 606, it is held that the illegality of a
Judgment reversed and cause remanded.