Citation Numbers: 152 Mo. App. 69, 132 S.W. 322, 1910 Mo. App. LEXIS 967
Judges: Nixon
Filed Date: 12/5/1910
Status: Precedential
Modified Date: 10/18/2024
This was a proceeding on an execution in favor of Malinda Bambrick and against John Bambrick issued from the circuit court of the city of St. Louis returnable to the October term, 1906. On the return of the execution, on October 2, 1906, plaintiff .filed certain interrogatories. On October 8,1906, Bambrick Brothers Construction Company, a corporation, filed its answer, as garnishee, to plaintiff’s interrogatories in which it was stated that the garnishee paid the defendant, John Bambrick, at the rate of seventy-five dollars per month for all services rendered by him to said garnishee, and that his wages is paid monthly in advance on the first day of each month. On October 23, 1906, plaintiff filed her amended denial to the garnishee’s answer. On motion of the garnishee, a portion of it was stricken out, leaving, substantially, the following: Plaintiff states that she obtained a judg
On December 13, 1906, the garnishee filed a reply to the amended denial, as follows: (Caption omitted.)
“Defendant for a reply to the amended denial of*73 its answer herein denies each and every allegation therein contained.
“For further reply defendant says that there is another action now pending in Division One of the circuit court of the city of St. Louis, Missouri, wherein Malinda Bambrick, the plaintiff herein, is plaintiff, and the Bambrick Brothers Construction Company, garnishee of John Bambrick, are defendants, said case being number 42101, for the same cause of action as the one alleged in the reply herein.
“Wherefore, the garnishee herein prays to be discharged hence with its costs.”
At the trial, the court, at plaintiff’s instance, gave the following instruction:
“The court instructs the jury that in case you find and believe from the evidence that John Bambrick entered into an agreement to receive a salary of seventy-five dollars a month payable monthly in advance, as set out in the garnishee’s ansioer, for the purpose of defrauding plaintiff out of her claim against him and for the purpose of preventing him from subjecting his salary to the payment of her said claim; and that this purpose was known to the garnishee, Bambrick Brothers Construction Company, at the time it made the agreement to pay him his salary in advance; and that the garnishee entered into said agreement for the purpose of assisting him in said fraudulent purpose; then in that case you shall find a verdict in favor of the plaintiff upon the first count of her denial for such sum as you shall find from the evidence the garnishee paid to the said John Bambrick as salary between the 28th day of June, 1906,'the date of the service of the writ of garnishment, and the 8th day of October, 1906, the date upon which said garnishee filed its answer herein, under said agreement.”
The principal contention on this appeal is that the plaintiff’s amended denial fails to state a cause of
The rules of pleading in garnishment proceedings are prescribed by our statute, section 2431, Revised Statutes 1909, as follows: “. . . In all cases where the answer of the garnishee is denied, the denial shall contain, specially, the grounds upon which a recovery is sought against the garnishee; and the garnishee shall be entitled to a reply, and the issue or issues made up on the denial and reply shall be the sole issue or issues tried, and the issue or issues shall be tried as ordinary issues between plaintiff and defendant.” In the construction of this section it has been uniformly held that the issues raised by the denial and the reply are the sole issues to be tried. [Dodge v. Knapp, 112 Mo. App. 513, 87 S. W. 47; Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090.] Like any other pleading, the denial should contain averments which should set forth such special facts as would advise the garnishee of the particular issue of fact which he is expected to meet. The object to be accomplished in proceedings by garnishment is to impound or appropriate a specified sum of money belonging to and due the defendant and owing by the garnishee, and the issue at the bottom of the proceedings is whether the garnishee is indebted to the judgment debtor in any greater sum than the amount admitted in his answer. Hence, it is fundamental that the denial should state whether there is any indebtedness due from the garnishee to the debtor, so that this issue of fact may be presented by the denial.
In this case, the garnishee, in its answers to the plaintiff’s interrogatories, denied any indebtedness, the fourth answer being, — “that it pays the said John Bambrick at the rate of seventy-five dollars per month for all services rendered by him to said company, and that his said wages is paid monthly in advance
At the trial of this case, the only liability of the garnishee — under the evidence adduced by the plaintiff — upon'which a recovery was sought was as to the salary of seventy-five dollars a month. The evidence showed that John Bambrick had been connected with two companies, the first one being known as the Bambrick-Bates Construction Company, which had gone out of business, and the other as the Bambrick Brothers Construction Company, which had been organized as a corporation by the same parties and had taken up and carried on the business of the former company. That John Bambrick was the president of the corporation and was receiving for his services the sum of seventy-five dollars per month. The question was a controverted one as to whether'his agreement with the corporation as .first made was that his salary of seventy-five dollars per month should be paid in advance, or after the services were rendered.
The evidence tended to show that the service of the notice of garnishment was on June 28,1906, and the garnishee filed its answer on October 8, 1906. The payment of the defendant’s salary immediately be
The law .indulges no presumption that the garnishee is liable, and liability must be made to affirmatively appear in order to justify a verdict. In this case, the garnishee having denied any indebtedness, the burden of showing such indebtedness on the part of the garnishee to the debtor devolved upon the plaintiff; and the plaintiff, in order to subject the garnishee to a liability denied by it, must show facts which would enable the defendant to maintain a suit against the garnishee. [Quarles v. Porter, 12 Mo. 76; Smith v. Heidecker, 39 Mo. 157; Holton v. South Pac. R. Co., 50 Mo. 151; Reagan v. Pacific R. Co., 21 Mo. 30.] The plaintiff in execution to recover must prove the indebtedness in the same manner as the defendant would be compelled to do had he sued the garnishee. [Karnes v. Pritchard, 36 Mo. 135.]
Of course it follows that if before the service of the writ of garnishment, a bona fide contract between the garnishee and the judgment debtor was entered into which effected the liability of the accountability of the garnishee- to the defendant, the garnishment would also be effected and rendered subordinate to such contract. In this case, the issue material to the decision of the controversy between the parties was
The garnishee’s answer in this case states a monthly hiring of the defendant by the garnishee' and an agreement to pay him for his services seventy-five dollars per month in advance. If "this answer was true, and the hiring was only from month to month, then there was no time between the date of the service of the garnishment summons and the date of filing the answer when the defendant himself could have maintained an action against- the garnishee. The language in the case of Reinhart v. Empire Soap Co., supra, is applicable here: “We certainly cannot say that as a matter of law an agreement to pay wages in advance is void. If the agreement was made for the purpose of hindering the defendant’s creditors, this fact must be shown in some manner by the evidence. A judgment cannot rest on mere suspicion of fraud. As was intimated in Fay v. Smith, 25 Ver. 610, slight circumstances might be sufficient to show that the contract was put in this form to embarrass creditors.” The theory of plaintiff’s recovery as developed at the
The garnishee in this court has challenged the sufficiency of the plaintiff’s denial in that it does not state that the garnishee was indebted to the defendant at the time of the service of the garnishment or at the time of filing the denial. As we have stated, this was a material allegation that the denial should have contained.
The garnishee has also challenged the sufficiency of the instruction given by the court for two reasons, first, because said instruction authorized a recovery provided the jury believed from the evidence that John Bambrick entered into an agreement to receive a salary of seventy-five dollars a month, payable monthly in advance, “as set out in the garnishee’s answer.” The garnishee’s answer, under our law, would have been competent evidence and might have been offered as such. [Smith v. Heidecker, 39 Mo. 157.] But in this case it was not offered as such and did not become evidence. The jurors had no knowledge of its contents and could not know what agreement John Bambrick entered into “as set out in the garnishee’s answer.” We think this portion of the instruction was erroneous. Furthermore, it is to he noted that the instruction does not present to the jury the question as to whether the contract of the garnishee and John Bambrick by which he was to receive a salary of seventy-five dollars per month, payable monthly in advance, was made prior or subsequent to the ser