19 Mo.App. 71 (Mo.App. 1885), Miller v. Anderson
|Citation:||19 Mo.App. 71|
|Opinion Judge:||ELLISON, J.|
|Party Name:||HENRY MILLER ET AL., Respondents, v. F. B. ANDERSON ET. AL., GARNISHEES OF H. H. BYRNE, Appellants.|
|Attorney:||PHELPS & BROWN, for the appellants. No brief on file for the respondents.|
|Case Date:||October 26, 1885|
|Court:||Court of Appeals of Missouri|
APPEAL from Jasper Circuit Court, HON. E. C. DEVORE, Special Judge.
Reversed and remanded.
Statement of case by the court.
This is a proceeding against Haskell and Anderson as garnishees of H. H. Byrne. They answered, denying all indebtedness, etc., at any time to Byrne, the principal defendant in the action. The plaintiffs filed a pleading, controverting this answer, in which it is stated:
" That at the time of the services of the writ of garnishment upon defendants, they were partners and had a contract from the Missouri Pacific Railway Company for the construction of its road, south and west of Carthage, Missouri, towards Webb City, Missouri, and that long prior thereto defendants sub-let a portion of said work to H. H. Byrne, and said Byrne had, and was at the time of the service of the garnishment, engaged on said work in the employ of defendants, with a large force of hands, and for said work so done by said Byrne and the persons in his employ, said Haskell and Anderson were at the time, and have since become, and are now indebted to said Byrne in the sum of $1,000, for which plaintiffs ask judgment."
The garnishees replied to this pleading, denying each and every allegation therein contained.
The case was tried before E. C. Devore, special judge, without a jury.
There was evidence tending to show that in a conversation between plaintiffs and one of the garnishees, the garnishee admitted he owed Byrne three hundred and eighty dollars, and said " the only way left us (plaintiffs) was to garnishee the money in their hands, and then they would pay it to us. Defendants advised us to garnishee the money in their hands."
There was no evidence that there had been any judgment rendered against the principal defendant, Byrne.
Among others, the garnishees asked, and the court refused the following instruction:
" 2. That although the court may find from the evidence that defendants admitted to plaintiffs that they were indebted to Byrne, yet such admissions on the part of defendants, do not, under the testimony in this case, amount to an estoppel."
The court of its own motion, gave the following instruction:
" That the defendants...
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