16 Mo.App. 510 (Mo.App. 1885), Boatmen's Savings Bank v. Overall

Citation:16 Mo.App. 510
Opinion Judge:ROMBAUER, J.
Party Name:BOATMEN'S SAVINGS BANK, Respondent, v. OVERALL, Appellant.
Attorney:HOUGH, OVERALL & JUDSON, for the appellant. W. B. THOMPSON, for the respondent.
Case Date:February 10, 1885
Court:Court of Appeals of Missouri
 
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Page 510

16 Mo.App. 510 (Mo.App. 1885)

BOATMEN'S SAVINGS BANK, Respondent,

v.

OVERALL, Appellant.

Court of Appeals of Missouri, St. Louis.

February 10, 1885

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

HOUGH, OVERALL & JUDSON, for the appellant.

W. B. THOMPSON, for the respondent.

OPINION

ROMBAUER, J.

This cause presents some close questions, and it is not without hesitation tat we have arrived at the conclusions announced in this opinion.

The appellants are garnishees on attachment proceedings brought against one Wm. V. Kay, as indorser of two notes of the Missouri Cotton Seed Oil Company. The notes which were made by Kay as president of the company bore date November 13, 1880, and were payable sixty days after date. The indebtedness evidenced by them originated in November, 1879, and January, 1880.

The garnishees, who are attorneys at law, answering plaintiff's interrogatories, denied any indebtedness on their part to Wm. V. Kay, but admitted that at the date of the service of the garnishment, they did hold a check for $10,000, since cashed, as proceeds of certain notes secured by deed of trust on the property of the Missouri Cotton Seed Oil Company, which notes they had received as attorneys from the agents of one Mary A. Tilden and one Jane G. Kay. They averred that said notes had been the sole, separate, and individual property of said parties in the proportion of $3,000 for Mrs. Tilden and $7,000 for Mrs. Kay, and that the debtor and defendant in the attachment suit, Wm. V. Kay, had no interest therein.

This answer was denied by plaintiff, the denial asserting that the money consideration of these notes secured by trust deed was furnished by defendant Kay. The denial further stated that Kay, being insolvent and intending to cheat and defraud his creditors, had pretended to transfer these notes to the agents of Jane G. Kay, his wife, and Mary E. Tilden, a relative.

Plaintiff's denial was contradicted by reply. The reply stating, among other things, that the garnishees had since the service of the writ upon them, parted with some of the funds, but had retained sufficient to cover plaintiff's claim.

The cause was tried by a jury upon these pleadings. Plaintiff gave evidence, showing that in the fall of 1880 Wm. V. Kay, the debtor, kept an account in his own name with the Bank of Commerce in the city of St. Louis; that on that account he deposited November 5, $5,000; November 8, $5,000; December 7, $375; December 15, $500, and December 16, $500, all in the year 1880. That $10,000 of this money, or thereabout, was loaned to the Missouri Cotton Seed Oil Company, and checked out by Wm. V. Kay's individual checks. That the...

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