150 Mo. App. 555 | Mo. Ct. App. | 1910
This is a garnishment proceeding. On issue made, judgment was given for plaintiff against the garnishee and from this judgment it appeals.
It appears the garnishment originated incident to an attachment suit instituted by the plaintiff herein against Edwin J. Gantz, defendant in the justice court. A proper service was had on Gantz, the defendant in attachment, but he failed to appear to the action and a judgment by default was given against him, from which judgment no appeal was prosecuted. The garnishee, having been summoned as the debtor of the defendant in the principal suit, made answer to the effect that it owed him nothing. This answer was properly denied and an issue made thereon in accordance with the statute. Upon a trial of this issue, the justice gave judg
Upon the opening of the trial in the circuit court, plaintiff introduced in evidence a transcript of the proceeding and judgment in the main or principal action by attachment by this plaintiff against the defendant Gantz. This transcript, duly certified by the justice before whom the cause was tried, shows the suit to have been instituted in attachment, and all matters essential' thereto, and further discloses a judgment against the defendant therein in favor of the plaintiff. The garnishee objected to the introduction of this transcript in evidence and in connection therewith moved the circuit court for a rule on the justice of the peace to certify up a true transcript of all proceedings had before him'touching both the principal action and the garnishment. In support of this motion an affidavit was filed to the effect that several days after the suit was tried before the justice his docket was examined and no judgment against the defendant in attachment then appeared therein. Our statute on garnishment provides:
“No final judgment shall be rendered against a garnishee until there shall be final judgment against the defendant.” [Section 3472, Revised Statutes 1899, section 3472, An. St. 1906.]
Because of this statutory requirement and of the omission of the justice’s transcript, originally filed on appeal, to recite a judgment against the defendant in attachment, the garnishee insisted on his right to
The argument of the garnishee does not go to the competency of the transcript introduced for the purpose of proving the judgment against the defendant in the main action was given before that against the garnishee, but is to the effect that at all events it was entitled under the statutes to a rule on the justice to send up a more perfect transcript to the end of conferring jurisdiction on the circuit court to proceed. Touching this matter, it is argued that the original transcript filed in the circumstances with the appeal wag wholly insufficient and that it may not be supplied by any subsequent transcript furnished by the justice without an order of the circuit court for the purpose. We believe the matter should be determined by ascertaining whether or not the omission to recite this fact from a transcript filed with the appeal of the garnishee goes to the jurisdiction of the circuit court; for if it does, then the fact that a judgment had been given against defendant in attachment before that against the garnishee may not be shown by the transcript of the justice introduced in evidence. Our statute, section 4069, Revised Statutes 1899, provides that on an appeal being allowed by the justice of the peace it shall be his duty to file in the office of the circuit court having appellate jurisdiction, within six days thereafter, a transcript of all entries made in his docket relating to-the case, together with all of the process and other papers relating to the suit and filed with the justice. Section 4071 provides, upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause and shall proceed
It is argued that though the court becomes possessed of the cause on the filing of even a defective transcript and original papers in accordance with the statute quoted, it frequently occurs that such transcripts are so defective as to require amendment and that the courts have ruled where such defects exist there is no authority in the justice to supply the defects in the original transcript except under an order of the appellate court. It is true there are decisions which go to this effect. For instance, in Norton v. Porter, 63 Mo. 345, the transcript of the justice filed on appeal was defective in respect to a jurisdictional matter, for it did not appear therefrom that some of defendants had appealed. The court ruled that the justice was without authority to amend the transcript on his own motion with respect to essential matters prerequisite to the right of appeal, and said the transcript could be corrected only in accordance with the statute which prescribed a method of procedure to that end. To the same effect is Hall v. Patterson, 34 Mo. App. 169. In Horton v. St. Louis, I. M., etc., R. Co., 21 Mo. App. 147, a judgment by default was given against defendant by the justice of the peace and it seems no appeal would lie from such a judgment until a motion to set the same aside had first been denied by the justice. On appeal to the circuit court, the transcript filed therewith omitted to show the essential prerequisite to the right of appeal that a motion to set
“Whenever the court is satisfied that the return of the justice is substantially erroneous or defective, the court may, by rule and attachment, compel him to amend the same.” [Sec. 4068, Revised Statutes 1899, sec. 4068, An. St. 1906.]
Of course, when the transcript of the justice on file with the appeal omits to disclose essential facts pertaining to the jurisdiction of the appellate court, the rule should go in every case, for without jurisdiction, the entire proceeding would be of no avail; but when the defect in the transcript relates to a matter not thus material, the statute, by its very terms, implies a measure of discretion in the circuit court. Under this very section it has'been ruled that as to such matters the court may exercise its discretion and its judgment will not be reversed for refusing to make a rule on the juslice for a correct transcript unless such discretion was manifestly abused. [Ryder, Shane, etc., v. Roberts, 48 Mo. App. 132.] It is clear no abuse of discretion appears in the record before us and unless the omission to recite in the original transcript that the judgment was entered against the defendant in attachment before one
But it is said by the statute the court is forbidden to give a judgment against the garnishee until one is first had against the defendant in the main action and unless it appears in the transcript filed with the appeal the judgment of the justice against the defendant was given before that 'against the garnishee and from which the appeal is prosecuted, no authority is shown for the judgment against the garnishee and the matter should be treated as not within the jurisdiction of either the justice or the circuit court. If the matter were to be tried on the recitals of the transcript alone, the argument would inhere with much force, but in view of the trial anew to be had in the circuit court, we believe the fact of a prior judgment may be shown as a matter of evidence by the justice’s docket entries in the main cause.
The answer to the proposition is that the two proceedings are in a measure separate actions though the garnishment is ancillary to the main case. For instance, in this case a judgment was given in favor of plaintiff and against defendant sustaining the attachment for the indebtedness sued for. No appeal was perfected therefrom and that matter passed into the realm of res adjudicata. The controversy between the plaintiff and the garnishee which arose, of course, ancillary to the main cause°of action, proceeded on the issue as to whether or not the garnishee was indebted to the defendant in attachment. That issue was tried in accordance with section 3467, Revised Statutes 1899, section 3467, An. St. 1906, which is to the effect that all the issues between the plaintiff and the garnishee shall be tried as ordinary issues between plaintiff and defendant and costs may be adjudged for or against either party, as in ordinary actions. From the judgment in favor of plaintiff on the issue suggested, the garnishee appealed and the justice certified and filed in the cir-
The judgment against the defendant in the main action not being a part of the record proper in the controversy between the plaintiff and the garnishee, it is said to be merely a matter of evidence which may be shown in the usual manner. [Gunn v. Howell, 27 Ala. 663, 677.] The matter not being important to the jurisdiction of the circuit court, there was no error in declining to make a rule on the justice for the omitted fact was one which may be proved by introducing in evidence the justice’s entries in the main ease.
The court gave judgment for plaintiff against the garnishee for one hundred dollars and it is argued the amount is excessive. We believe this to be true. It appears defendant Gantz, a non-resident of this state, was in the employee of the garnishee at a salary of two hundred dollars per month, which was paid weekly in installments of about fifty dollars each, though they varied. The garnishee was summoned on January 18th and filed its answer on January 29th. Under our statutes, section 3436, Revised Statutes 1899, section 3436 An. St. 1906, the service of garnishment has the effect of attaching any money of defendant then in the hands of the garnishee or that may be owing by the garnishee to defendant between that time and the time of filing the answer of the garnishee. [Dinkins v. Crunden-Martin, etc., Co., 99 Mo. App. 310, 73 S. W. 246.]
It is conclusively established in the proof that the garnishee had paid defendant his last wages up to the 16th day of January and two weeks, or one-half month’s