Miller v. Anderson

• Decision Date: 26 October 1885
• Citation: 19 Mo.App. 71
• Parties: HENRY MILLER ET AL., Respondents, v. F. B. ANDERSON ET. AL., GARNISHEES OF H. H. BYRNE, Appellants.
• Court: Kansas Court of Appeals

19 Mo.App. 71

HENRY MILLER ET AL., Respondents, v. F. B. ANDERSON ET. AL., GARNISHEES OF H. H. BYRNE, Appellants.

Court of Appeals of Missouri, Kansas City.

October 26, 1885

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 in this case are entitled to have and maintain every defence they could have and maintain if Byrne was the plaintiff, and plaintiffs cannot maintain this action, unless defendants by their acts and admissions made to plaintiffs before the commencement of this proceeding, they now, in good conscience and common honesty, are estopped to gainsay and deny."

Judgment was rendered against the garnishees for three hundred and eighty dollars, and they appeal.

PHELPS & BROWN, for the appellants.

I. There can be no judgment against the garnishees until judgment against the principal defendant shall have been recovered. Rev. Stat., sect 2531; Drake on Attachment (4 Ed.) sect. 460.

II. A party who declares that he is indebted to another, and promises a creditor that he will retain the money until he has an opportunity to garnish it in his hands, is not estopped from denying his indebtedness in a garnishment proceeding thereinafter instituted. Drake on Attachment (4 Ed.) sect. 629 a ; Lewis v. Prenatt, 24 Ind. 93.

III. Facts relied on as an estoppel in pais must be specially pleaded. Bray v. Marshall, 75 Mo. 327.

IV. It is a universal rule, that under no circumstances, shall a garnishee be placed in a worse condition than he would be in, if the defendant's claim was enforced by the defendant himself. Drake on Attachments (4 Ed.) sect. 462.

V. Under the evidence the finding and judgment should have been for the defendants.

No brief on file for the respondents.

ELLISON J.

It was manifest error in the court below to render final judgment against the garnishees until there had been a judicial ascertainment of the original defendant's indebtedness to plaintiffs and it had been reduced to a final judgment. Rev. Stat., 1879, sect. 2531; Drake on Attachment, 460.

The instruction...