Dooley v. Missouri Pacific Railway Co. , 45 Mo. App. 308 ( 1891 )

Ellison, J.

— This is a suit for wages, for services rendered defendant during the months of November and December, 1887, and June and July, 1888. There was no controversy at the trial as to the amount of wages earned by plaintiff during said months, but the defendant claimed that it was not liable in this action to plaintiff, for the reason, that it had theretofore paid the wages due him to J. D. Cooley, his judgment creditor, in a garnishment suit, instituted before a justice of the peace of Cass county, Missouri, and after-wards taken by appeal to the circuit court of said county, in which latter court a judgment order was made on it to pay the wages herein sought to be recovered into court, for the use of said judgment creditor, J. D. Cooley ; that said judgment was rendered and paid by defendant, was conceded by plaintiff at the trial, but he contended that it was no defense to this action, for the reason that the constable’s return in said garnishment proceeding conferred no jurisdiction on the circuit court to condemn the wages due plaintiff. The defendant introduced all the court hies and the record in said garnishment proceeding in evidence against plaintiff’s objection. It appeared from said garnishment proceeding that Rebecca Dooley, the mother of the plaintiff herein, claimed the wages due her said son, and hied an interplea in said action making said claim, and this interplea was dismissed for want of prosecution, and this defendant garnishee was ordered to pay the money due plaintiff into court for the use of said J. D. Cooley, his judgment creditor. It also appeared from plaintiff’s own testimony that the wages herein sought to be recovered were earned by him while he was a minor. The court found the issues for plaintiff, and gave him judgment for the full amount of wages claimed in his petition.

The judgment should have been for the defendant. Plaintiff being a minor at the time the wages were earned, they belonged to his mother, his father being dead. There is nothing in the case to show that she had parted with her right to the services or earnings of her child, prior to or at the time the wages were earned. Mathews v. Railroad, 26 Mo. App. 83, and cases cited ; Mauerman v. Railroad, 41 Mo. App. 348. The contention that plaintiff’s wages were used in supporting his mother does not militate against the point j indeed, that is but a- recognition of her right.

We do not see that the seventh division of section 2113, Revised Statutes, 1889, has any application to this case.

The judgment will be reversed.