Benton v. Lindell , 10 Mo. 557 ( 1847 )

Napton, J.,

delivered the opinion of the Court.

Lindell recovered a judgment against the Bank of Missouri, in 1825, and not being able to make the debt by fi.fa., sued out an attachment, under the statute, and summoned Benton as garnishee. This was in 1837. After a variety of proceedings, not material to be noticed, Benton filed his answer in 1841. The answer was excepted to, and the exceptions sustained. At the April term, 1844, a further.answer was filed, which in substance denied all indebtedness to the Bank at the time of the garnishment, and relied also on the statute of limitations. So much of the answer as denied indebtedness was traversed, and exceptions were taken to that part oí the answer which set up the statute of limitations. The objection to this part of the answer was, that the garnishee having been a corporator and director of said Bank, and owing the debt to said Bank in a fiduciary capacity, he could not avail himself of the statute. On the 22nd November, 1844, a motion was made by the garnishee to strike out the traverse to his answer and to overrule the exception taken to that part of the answer which relied on the statute of limitations.— This motion was overruled. On the 28th October, 1845, the following entry appears on the record : “Now at this day comes the said plaintiff, by his attorney, and not requiring a jury, therefore all and singular the premises are by him submitted to the court, which being seen, &c., the court doth find as to the first issue, &c., that the said garnishee was indebted, &c.,” (proceeding to find all the issues for the plaintiff.) A judgment was rendered against the plaintiff in error for $12,352.

On the 9th of January, 1846, the plaintiff in error moved to set aside this judgment for irregularity, which motion, on the 23rd March, 1846, was overruled, but no exceptions were taken. The record is brought to this Court hy writ of error.

This case falls within the principle settled by this Court in the case of Pratte & Cabanne vs. Corl, (9 Mo. R., 164,) and Sutton vs. Clark, (ib. 559.) It appears upon the face of the record that the court, upon the submission of the plaintiff alone, tried the issues of fact, found a verdict upon them all for the plaintiff, and entered a judgment on this verdict.— To correct this error, a motion in the court “below is unnecessary. Pratt vs. Rogers, 5 Mo. R., 58; Carr vs. Edwards, 1 Mo. R., 137; Finney, Dobbyns & Shade vs. State of Missouri, 9 Mo. R., 634.

As the case goes back, it may not be amiss to «notice the decision of tbe court in overruling the defence'of the statute of limitations, although no exception was taken to this decision at the time. We have not been ■able to discover any thing -in the letter or spirit of the statute of limitations which restricts its privileges to "any particular class of debtors.— Nothing is said in the act from which it can be inferred tbat debts contracted in a fiduciary character are exempted from its operation, nor is there any thing in the phraseology-or object of the statute which would •preclude garnishees from its benefit. The statute was framed to protect persons from stale demands, which are presumed to have been paid, and the evidence of which payment the debtor is presumed to have lost or failed to preserve. If garnishees are understood to he excluded from “the benefits of the act, it will be ’very easy, in all cases, to evade the statute entirely, by collusion between the creditor and a third person.— An indebtedness may be created by the creditor for the very purpose of ■defeating'such a defence on the part of his debtor, and in this way the statute be rendered nugatory.

The other Judges concurring, the judgment is reversed and the cause .remanded.