130 Mo. App. 325 | Mo. Ct. App. | 1908
Plaintiff instituted this suit by attachment against the defendant in the circuit court of Barry county. The First National Bank of Monett was duly summoned as garnishee in the case, and on Monday, September 4, 1905, the first day of the term, plaintiff filed in the court and exhibited to the garnishee proper interrogatories with respect to the funds, etc., of the defendant in its hands. During the same term and on the 8th day of September, the garnishee filed its answer to such interrogatories, denying that it had any property, funds, money, etc., of the defendant in attachment in its* possession or under its control. In due time thereafter and during the same terms, plaintiff in attachment filed its reply to the answer of the garnishee, in which it alleged in substance that at the time of the service of the garnishment, defendant bank had in its possession $1,621.30 of moneys belonging to the defendant in attachment. There appears to have been no further pleadings on the part of the garnishee; that is to say, the garnishee filed no denial to the plaintiff’s reply as contemplated by section 3451, Revised Statutes 1899, sec. 3451, Mo. Ann. Stat. 1906. However that may be, the issue presented by the garnishee’s answer and reply of the plaintiff in attachment were heard by the court without a jury during the same term on September 22nd, as though such denial had been filed. The record discloses a judgment on the merits for $318.40; and in the attachment suit, judgment was given by the court in favor of the plaintiff and against the defendant in attachment during the same term of court, on the
“If, upon such trial, it shall appear that property, effects or money of the defendant are found in the hands of the garnishee, the court or jury shall find what property or effects, and the value thereof, or what money-are in his hands, and unless he discharge himself, as provided in section 3439, by paying over or delivering the same to the sheriff, or unless he shall, within such time as the court shall direct, as provided in section 34.40, pay or deliver up such property, effects or money, or shall execute his bond for the payment or delivery thereof, then the court shall enter up judgment against the garnishee for the proper amount or value as found in money, and execution may issue forthwith to enforce such judgment.”
Now it seems that the judgment against the garnishee is authorized by this section only, where the garnishee has failed to avail himself of the privilege or failed to comply with the order of the court provided for in sections 3439 and 3440; that is to say, it appears the court is not authorized to enter the judgment until it has first made an order directing the garnishee to pay the money to the sheriff or into the court. In Groschke
The question presents itself as to whether or not this irregularity is one affecting the merits of the controversy in the sense contemplated by our statute declaring the policy that judgments shall not be reversed on account of mere technical quibbles. The proposition referred to is without influence here and should not be considered for the reason, if no other, that the garnish-, ment proceeding is purely statutory. [Wade on At-
It is suggested the matter under consideration amounts only to an informality within the purview of our statute 'of jeofails, providing that judgments shall not be reversed for “informality in entering the judgment or making up the record thereof.” [Sec. 672, R. S. 1899; sec. 672, Mo. Ann. St. 1906.] It may be said the word “informality” as defined by Bouvier, is a “want of customary legal form.” It is quite clear there is no informality in the judgment before us in the sense given.