Funkhouser v. How

• Decision Date: 31 October 1852
• Citation: 17 Mo. 225
• Court: Missouri Supreme Court
• Parties: FUNKHOUSER & POTTLE, Plaintiffs in Error, v. How, Defendant in Error.

17 Mo. 225

FUNKHOUSER & POTTLE, Plaintiffs in Error,

v.How, Defendant in Error.

Supreme Court of Missouri.

October Term, 1852.

1. Where a person seeks to recover money wrongfully obtained by the defendant under color of judicial proceedings, his petition must contain such averments as will exclude the idea that the money could have been lawfully obtained.

Error to St. Louis Court of Common Pleas.

The petition stated that, on the 16th of April, 1850, Thos. Crew, for his own benefit, caused the life of Jacob Lesher to be insured by the Phœnix Insurance Company, in the sum of five hundred dollars, as would more fully appear by the policy, filed with and made a part of the petition; that on or about the 1st of March, 1851, and while the policy was subsisting, Lesher departed this life within the terms of the policy, so that Crew became entitled to receive from the Insurance Company said sum of five hundred dollars; that on the 3d of July, 1851, said Thomas Crew assigned the policy and all his interest therein to Micajah B. Crew, and on the 2d day of August, 1851, said Micajah assigned the same to the plaintiffs, which assignments would appear on the policy filed with the petition; that afterwards, and about the 1st of May, 1852, the defendant, under color of some judical proceedings, to which neither said Micajah nor the plaintiffs were parties, wrongfully and unjustly required and compelled said Insurance Company to pay to him said sum of five hundred dollars, and received said sum in discharge of the obligation of said company under the charter. Plaintiffs stated that said sum of money of right belonged to them, and had never been paid to them, and they asked judgment for the same with interest.

To this petition, the defendant demurred, on the ground that it set forth no cause of action. The court below sustained the demurrer, and gave judgment for the defendant. The plaintiff brings the case here by writ of error.

R. M. Field, for plaintiffs in error. 1. A cause of action was shown in the petition, in this, that the defendant had wrongfully obtained from the debtor of the plaintiffs money to which they were justly entitled. They were at liberty to treat the payment as made to the defendant for their use. 2. The truth of the case is, that the defendant obtained the money from the Insurance Company upon garnishment process commenced after the assignment of the policy to the plaintiffs, and under a judgment rendered against the garnishee, after the defendant had notice of the assignment. Under these circumstances, the defendant cannot hold the money from plaintiffs. This very point was decided in Quarles & Thompson v. Porter, 12 Mo. R. 83. See also to same effect, Bank v. McCall, 3 Binn. 338. Enos v. Tuttle, 3 Conn. 27. West v. Tupper, 1 Bailey (S. C.), 193. It is no answer to say that the garnishee is still liable to the plaintiffs. The case is like that of a debtor paying to a person not authorized by the creditor to receive payment. The creditor may elect to sue the debtor, or by affirming the judgment, recover the amount from the person receiving it without authority.

Krum & Harding, for defendant in...