Colcord & Hall v. Daggett , 18 Mo. 557 ( 1853 )

Scott, Judge,

delivered the opinion of the court.

1. It is well settled in this state, that the maker of negotiable paper is subject to garnishment, at the suit of a creditor of the holder of the note at the time of the service of the process.

2. The note in question was due in June, 1852. The trial of this cause took place in May, 1858. If any other person than Solomon Sublett had been the owner of the note, at the time the garnishment was served, he might have appeared at the trial and asserted his claim, which, if established, would have defeated the recovery of the plaintiffs. Now, considering the habits of men of business, the usual course of all men, can there be any doubt that if any other person than Solomon Sub-lett had been the owner of this note, his right to it would have been asserted ? The spirit in which this controversy is carried on, is a guaranty to us that if there was another bona fide holder of the note, he would have been informed of this proceeding, and his claim would have been interposed. Daggett will be indemnified in paying the note to the plaintiffs, who will become liable to the real holder, should he prove not to be Solomon Sublett. If the garnishee should be satisfied that the debt did not belong to Solomon Sublett, at the service of the garnishment, and the true owner should appear, before the actual payment by him, he may, even then, take steps to arrest the proceedings of the plaintiffs. Thompson v. Quarles, 12 Mo. Rep. 76. St. Louis Perp. Ins. Co. v. Cohen, 9 Mo. Rep. 421. These suggestions are made to show the improbability that there is any other claimant of this note than Solomon Sublett, and the little danger there will be, in condemning the garnishee to pay the debt to the plaintiffs.

3. The answers of the garnishee are not positive. He does not speak from bis own knowledge, but from bis information and belief. Tbe solemn admission, made under bis band and seal, in the deed of trust, under circumstances which show that he was not likely to be deceived as to the ownership of the note, and as to whom it was payable, detracts from the weight of the answer, and taken in connection with the considerations above mentioned, are sufficient, in our opinion, to overthrow it.

The other judges concurring, the judgment will be reversed, and the cause remanded.