Strauss v. Ayres

87 Mo. 348 | Mo. | 1885

Norton, J.

Plaintiffs brought this suit by attach* ment in the circuit court of Greene county against defendant, Ayres, and A. F. Kinney, who was summoned as a garnishee, appeared and answered that he owed or had no money or effects of Ayres in his hands at the time he was garnished. Issue was joined oh the answer, which was tried and resulted in a judgment in favor of plaintiffs against Kinney, from which he has appealed.

The only evidence offered by plaintiffs on the trial was the record and proceedings in an attachment suit instituted by one S. Horine against John Ayres in the probate and common pleas court of Greene county on the same day that plaintiffs, Strauss & Company, instituted this suit against him, and in both of which Kinney was summoned as garnishee. The record and proceedings in the case of Horine against Ayres showed that upon a trial of the issue in that case between the plaintiff and Kinney, as to his indebtedness to Ayres, the jury found that Kinney, at the time he was summoned, had in his hands the sum of three hundred dollars belonging to Ayres, and that judgment was rendered .against Kinney for the amount of Horine’s judgment. This evidence was received over the objection of Kinney .and this action of the court is assigned for error.

That a judgment is only binding on the parties to it .and those in privity with them, is a rule so familiar as not to demand the citation of authorities to establish it. Strauss & Company were neither parties nor privies in or to the Horine judgment. Mr. Freeman, in section 167, in his work on Judgments, says : ‘ ‘ Where one is by garnishment involuntarily made a party to a suit in which he has no personal interest, he is fully protected by the proceedings in law, provided he -acts in obedience to the orders of the court in the surrender and payment of the property attached. But a judgment against a garnishee is never conclusive against the principal that the amount for which the garnishee has been made liable is the full amount due from him. Otherwise a garnishee, by confessing part of the debt, could avoid payment of the residue. He will in no case be protected by the judgment beyond the amount it required him tg pay, and this is the rule applied to judgments against % trustee. But a judgment for or against a garnishee in an attachment issued in favor of one creditor is noli binding on any other attaching creditor. Between thg two creditors there is no privity.”- See, also, segfiQlii 159 and 252 of same author, and Nocross v. Hudson, 32 Mo. 227.

For the error committed in receiying in gyidengg the proceedings and judgment in the case of Horine v. Ayres, the judgment is reversed and cause remanded.

All -concur.