Cassidy Bros. Commission v. Estep , 63 Mo. App. 540 ( 1895 )

Ellison, J.

Plaintiff obtained judgment against defendant in the circuit court of Jackson county, in 1893. In 1894, he had execution issued on such judgment, and directed to the sheriff of Greene county. The said sheriff duly summoned the garnishee herein. This garnishee appeared in due course in the circuit court of Jackson county, and to the interrogatories filed by plaintiff, answered that he owed the defendant nothing. Plaintiff denied the answer and set up, affirmatively, certain alleged matters of indebtedness of garnishee to the defendant. The garnishee filed a reply to this in which he set up that whatever indebtedness of his to defendant may have existed growing out of the matters stated in plaintiff’s denial, was liquidated by his paying into court, on three separate garnishments had before a justice of the peace -in Greene county. The plaintiff contended below and here contends that the garnishment proceedings before the justice in Greene county were so defective as not to afford the garnishee protection on his payment of the money there, as aforesaid. The validity of the proceedings in the matter of the garnishment in Greene county is the question for determination here. The judgment below was for the garnishee. It is conceded that the garnishee proceedings before the justice in Greene county were defective in that the return of the service of the attachment and summons of garnishment, as made by the constable, were so defective as not to give jurisdiction to the justice in the garnishment proceedings.

After the garnishment proceedings in this ease were begun, which was some thirteen months after-garnishment in Greene county, the justice before whom the latter proceedings were had permitted the constable to so amend his returns as to make them conform to' the fact and thus to show a proper service and proper returns. These amended returns were admitted in evidence by the trial court over the objection of the plaintiff.'

That an amendment of a return may be made by an officer, so as to make it conform to the fact, is quite well settled. Fee v. Railroad, 58 Mo. App. 90; Corby v. Burns, 36 Mo. 194; Boatman v. Grewe, 84 Mo. 477; Stewart v. Stringer, 45 Mo. 113; McClure v. Wells, 46 Mo. 311. It is no objection that the amendment is permitted after the suit which the amendment is sought to affect, has been begun. Fee v. Railroad, and Corby v. Burns, supra. Nor is it any objection that the amendment is made during the trial of such suit. Nor that the amendment was permitted thirteen months after the original returns were made. Nor, where jurisdiction of the court, in fact, exists, will it be an objection that no jurisdiction appeared except by amendment.

But plaintiff contends that if an amendment can properly be made, yet the proceeding here being before the circuit court of Jackson county, the amendment could not be- authorized or permitted by the justice of the peace in G-reene county. In the statute, section 6225, Revised Statutes, 1889, relating to justices of the peace, it is provided that the justice may, in open court, amend on motion of either party, any summons, writ, or other proceeding. The amendment here was made at the instance of this garnishee, who was also the garnishee in the proceeding before the justice in Greene county. And these amendments have been permitted in justices’ courts, apparently, without reference to the statute aforesaid, but simply from the inclination of the courts to subserve the ends of justice. See cases of Corby v. Burns, 36 Mo. 194, and Fee v. Railroad, 58 Mo. App. 90. These amendments have been permitted in the circuit court on appeal, on the ground that they could have been permitted in the justice’s court. Transier v. Railroad, 54 Mo. 189; Boulware v. Railroad, 79 Mo. 494. Our opinion, therefore, is, that the amendment could be made, under the supervision and with the permission and authority of the justice’s court in Greene county, in which the records and proceeding remained.

I. The plaintiff complains of the action of the trial court in the following: The court, without a jury, heard the case, without the amended returns being in evidence. The evidence was closed, but no decision made. A few days thereafter garnishee asked to have the case opened for the purpose of introducing the amended returns. The court intimated that it would do so. The plaintiff thereupon objected; when the court stated that if plaintiff desired, the cause would be continued on account of offering the amended returns. Plaintiff stated that he did not desire it continued. Thereupon the court received in evidence the amended returns. We do not feel justified in holding this to be an abuse of the court’s discretion.

The garnishee before the justice in Greene county paid over to the constable the amount of his indebtedness to defendant, as it is provided he may do by section 5252, Revised Statutes, 1889. There was personal service on the defendant in that case and a general judgment was rendered against him. Rendering a general judgment was proper. Secs. 556, 560, 604, R. S. 1889.

II. But plaintiff asserts that there was no judgment on the attachment. Since the garnishment proceeding before the justice was bottomed on an attachment sued out by the plaintiff in that case, it should appear that the attachment was sustained in the justice’s court, in order that the garnishment might remain effective and afford a protection to the garnishee. But we have concluded the record of the justice in Greene county shows it was, not in as direct and plain terms as it should; yet sufficiently. The record shows a proper attachment proceeding; and, as before stated, personal service on the defendant therein. The judgment is then rendered in the following terms:

“And now on this twenty-fifth day of April, 1893, this cause coming on to be heard, and the defendant being called, comes not, but makes default, and the plaintiff having made proof of his complaint to the satisfaction of the justice, the justice finds for the plaintiff.

“It is therefore considered, ordered, and adjudged by the justice that the plaintiff have and recover, of ;and from the defendant, D. P. Estep, the sum of •$194.19 for his debt, and his costs expended at $7.25. It is also ordered by the justice that the garnishee, Joe ¡Squibb, pay to the plaintiff, E. E. Hendrix, the sum of : $201.45, this being money attached in the said gar.nishee’s hands.

“J. J. Gilliland, J. P.”

Considering the judgment in its entirety, in view of the liberality extended to proceedings before justices of the peace, we are constrained to hold that it sufficiently appears that judgment was rendered sustaining -,bhe .attachment. We shall therefore affirm the judgment. But, as there is a claim by the garnishee for expenses and fees, we will remand the cause to the circuit court with directions that, on an issue being made as to all legal charges of the garnishee, such charges be ascertained as provided by law on any other like issue, the parties, unless a waiver is entered, being entitled to a jury. Briggs v. Railroad, 111 Mo. 168.

All concur.