9 Mo. App. 275 | Mo. Ct. App. | 1880
delivered the opinion of the court on a rehearing.
This is an action against a constable and the sureties on his official bond. There was judgment against defendants, and execution was ordered for the amount claimed. It appears from the evidence that Reed and Green recovered judgment before a justice against Lalley, for whose use this action is brought. ■ Maloney was then, at the instance of Reed and Green, summoned as garnishee of Lalley, on execution issued on that judgment, and such proceedings were
The petition was carelessly drawn, and was in more than one respect defective. The answer was a general denial. Defendants, on the trial, objected to the introduction of any evidence, on the ground that the petition showed no cause of action, and specifically because it contained no averment of any judgment. The objection was overruled. The prayer of the petition was that the plaintiff recover the amount to which he claimed he was damaged by the breach alleged. Plaintiff was allowed to amend in this respect during the trial, and in granting this permission there was no error. No offer was made to amend in other respects. The petition alleged the issuing of an execution against Lalley, and also the issuing of an execution against the garnishee ; but there was uo allegation of any judgments on which these executions were issued. The cause of action was defectively stated. But if these facts were proved on the trial, and there was no question of surprise, we think that these defects were cured by verdict, and that the trial court committed no error in overruling the motion in arrest, so far as it was founded upon the insufficiency of the petition.
It is claimed by appellants that there was no proof of these judgments. The evidence offered, and admitted
But, not only was there no allegation of a judgment against the garnishee, but nothing was said as to the necessity of such a judgment in the instructions.
The instruction given for plaintiff was the only instruction in the case, and was as follows : —
“ If the jury find from the evidence that Lalley, at the date of service of execution by defendant Carroll, and the collection of the debt due by Malone}' as garnishee of Lalley, was a resident of the State and head of a family, then he was entitled under the law to hold exempt from levy household and kitchen furniture necessary for his family, beds and bedding not exceeding four, all of the value of $100; and ill addition thereto, in lieu of specific property mentioned in sect. 9, any other property, debts, or wages, of the value of $300. This being a right guaranteed by law to the execution debtor, it is made the duty of the officer to apprise him of his rights, and recognize and respect the ex
And defendants asked an instruction that, “ unless the jury find from the evidence, that after the summoning of Maloney as garnishee there was a valid judgment rendered against him as garnishee, he is not discharged by the payment of the debt to Carroll, and still owes it; and the burden of proving a judgment valid in every respect against Maloney rests upon plaintiff.” This instruction was refused.
It was unquestionably erroneous to refuse this instruction. If Maloney involuntarily paid to the constable what he owed Lalley, Lalley could not be damaged by that, as he did not thereby lose his debt, and could not be affected by such payment. But in view of the fact that the judgment against Maloney was proved, and that there could be no question as to this fact, we do not think that the omission in the instruction given, or the refusal of this instruction asked, could prejudice appellants, and therefore this action of the trial court will not warrant a reversal of the judgment.
If plaintiff was entitled to recover on the facts in evidence, no sufficient ground appears for reversing the judgment. As to this, we were of opinion that the facts as stated did not warrant a recovery. We held that the statu
The judgment must be affirmed.