Walker v. N. K. Fairbanks & Co. , 55 Mo. App. 478 ( 1893 )

Rombauer, P. J.

Upon a trial of this cause the court rendered judgment in favor of the garnishee. All the instructions asked by the plaintiff were given, and no exceptions were saved to the admission or rejection of evidence. The garnishee asked no instructions. The only complaint made by the plaintiff is that, under the conceded facts, the court should have rendered judgment against the garnishee.

The garnishee’s answer which was filed in June, 1891, admitted an indebtedness to the defendant Henderson, but stated that such indebtedness was payable in Denver in the state of Colorado. The garnishee’s answer under our practice is evidence in his favor, even in regard to all affirmative facts stated therein by way of avoidance. (Holton v. Railroad, garnishee, 50 Mo. 151; Ronan v. Dewes, garnishee, 17 App. 306.) Hence it became incumbent upon the plaintiff to disprove the fact that the debt was payable in Denver, Colorado, and to prove that it was payable here, since the place where the debt is payable is its situs, in this class of cases, for the purpose of determining the jurisdiction of the court over it. Green’s Bank v. Wickham, 23 Mo. App. 663.

On the trial of this cause the plaintiff disclaimed to have attached any debt payable subsequently to July, 1891. The garnishee’s officers, who testified for plaintiff, stated that up to January, 1892, the employes of the garnishee, of whom Henderson was one, were paid by checks or drafts on New York city, and that such checks or drafts were invariable sent to Henderson or Henderson’s wife to Denver, in the state of Colorado, where Henderson resided. It will be thus seen that, outside of the garnishee’s answer, there was ample evidence to support the judgment of the court, because, if the checks or drafts were payment in themselves, then the situs of the debt was Denver, in the state of Colorado, and if the place where the checks or drafts were payable determined the situs of the debt, then such situs was New York City, in the state of New York. In neither event was the situs of the- debt in this state. Hence, it results that the court rendered the only judgment which it could have rendered under the facts established by the plaintiff’s own evidence.

All the judges concurring,

the judgment is affirmed. It is so ordered.