Reese v. Cook

• Decision Date: 04 May 1885
• Parties: CASPER REESE v. CHARLES H. COOK ET AL.; Issues between CHARLES H. COOK, Interpleader, Appellant, and DAVID S. GILMORE, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 512

CASPER REESE

v.CHARLES H. COOK ET AL.; Issues between CHARLES H. COOK, Interpleader, Appellant, and DAVID S. GILMORE, Respondent.

Kansas City Court of Appeals, Missouri.

May 4, 1885.

APPEAL from Grundy Circuit Court, HON. J. H. SHANKLIN, Special Judge.

Affirmed.

The facts sufficiently appear in the opinion of the court.

GEORGE HALL, for the appellant.

I. The court, by its finding and judgment, decided that the attachment proceedings of appellee Gilmore, the garnishment of plaintiff Reese and judgment against Roberts, being prior to appellant's proceedings in point of time entitled him to the money garnished, as against appellant; that the issues as to partnership and fraud did not constitute a defence to appellee's claim; and the court ignored or failed to find upon these two issues. This was error. The interpleaders for the fund in court were bound, respectively, to establish their claim against Roberts. And the appellant was not bound in any manner by appellee's attachment proceedings against Roberts, being no party to it.

II. Appellant therefore had the right to contest Gilmore's claim to the money.--Sect. 447, Rev. Stat., 1879, p. 71. In addition to this, the record shows that it was by the agreement of these parties, that the injunction case was to remain on the docket, and the parties were to interplead for the money attached.

III. The testimony shows that Gilmore was a partner with Roberts, and had an interest in the railroad contract and money. And if this was partnership money, the plaintiff Reese did not owe Roberts, but the firm of Gilmore & Roberts. And if Gilmore was a dormant partner of Roberts, he was just as much liable for the debt of appellant Cook, as was Roberts.-- Winship v. Bk. U. S., 5 Peters 561; Richardson v. Farmer, 36 Mo. 35. And if the note Gilmore had on Roberts did not grow out of the partnership business, he could not seize the partnership effects in the hands of a creditor of the firm, by attachment and garnishment.-- Sheedy v. 2nd Nat. Bk., 62 Mo. 17. And if Gilmore's debt is valid and originating outside of partnership business, as the money garnished was partnership money and Cook's debt is a partnership debt, it is preferred.-- Lucas v. Lucas,27 Penn. St. 211.

IV. If Gilmore's proceedings were fraudulent, it was a good defence to his claim for the money. The testimony clearly shows they were, and shows an understanding and concert of action between Roberts and Gilmore, and a conspiracy between them to defraud Cook.

V. It was the duty of the court to find upon the issues, and a failure to do so is error, which was called to the attention of the court by the motion in arrest.-- Steward v. Hadley, 55 Mo. 235; Leeper v. Lyon, 68 Mo. 216; Owens v. R. R. Co., 58 Mo. 386.

VI. Appellant's interplea was in the nature of a suit to set aside appellee's attachment proceedings. There were two causes of action in the interplea, and there should have been a separate finding on each, instead of neither one.-- Brownell v. Pac. R. R. Co., 47 Mo. 239; Brady v. Conley, 52 Mo. 19.

R. A. DE BOLT, for respondent Gilmore.

I. The assignment of errors appears first in additional brief. It comes too late. His assignment of errors should be disregarded and the judgment affirmed.

II. The money in controversy was garnished in the hands of Reese. This process held it as firmly in the hands of the clerk as in the hands of the garnishee; and the reduction of his claim against Roberts to a judgment, established the prior lien of Gilmore upon the money so firmly, that it could not be destroyed by any subsequent proceedings, except a dissolution of the attachment. The order perpetuating the injunction, discharging the garnishee, and allowing the parties to interplead for the money, did not change the rights or relations of the parties. The order left the parties in the same position that it found them. At the trial respondent's judgment was admitted by Cook.--Drake on Attachment, sects. 224, 453 and 455; Luckey v. Seibert, 23 Mo. 85. Cook neglected to set up any defence, or make any complaint whatever, to Gilmore's suit in attachment against Roberts (Sect. 447, Rev. Stat., 1879), which he was bound to do under the statute. Having failed to present these questions at the proper time, he can not subsequently be heard to do so, without showing legal or equitable excuse for the failure.--2 Story Eq. Jurisp. (12 ed.) sects. 894, 896; Greenabaum v. Elliott, 60 Mo. 29. The judgment is valid and cannot be attacked collaterally.-- Gray v. Bowles, 74 Mo. 423.

III. There is no evidence that the court misconceived the issues or failed to find on the issues of fraud and partnership. All the evidence at the trial was heard and considered by the court. The existence of fraud and partnership, as charged in appellant's interplea, were questions of fact to be determined by the court from the evidence. The court did determine them in favor of defendant Gilmore, and these questions, being raised by the pleadings, are forever settled by the finding of the court.-- Reilly v. Hudson, 62 Mo. 387; Beck v. Pollard, 55 Mo. 26. Even in equitable cognizance it is the custom of the court to defer somewhat to the findings of the trial court.-- Hendricks v. Wood, 79 Mo. 590. A court sitting as a jury is not bound to incorporate in its judgment, a finding upon every fact arising in the cause.-- Erwin v. Brady, 48 Mo. 560. By agreement the cause was submitted to the court, without the intervention of a jury, and no declarations of law were asked or given.

Opinion by ELLISON, J.

This action arose in the following way: One Roberts who was a contractor on the Quincy, Missouri & Pacific Ry. Co., which was being constructed through Grundy county, was largely indebted to various parties, and at the same time, there was due him from plaintiff Reese, $1,331.53 Gilmore and Cook each sued Roberts by attachment, and each garnished Reese; Gilmore being one day ahead of Cook with his attachment and...