21 S.W. 484 (Mo. 1893), City of St. Louis v. The O'Neil Lumber Company

Citation:21 S.W. 484, 114 Mo. 74
Opinion Judge:Brace, J.
Party Name:The City of St. Louis v. The O'Neil Lumber Company, et al.; Doyle et al., Appellants
Attorney:J. H. Trembley for respondent O'Neil Lumber Company. Rassieur & Schnurmacher for respondents Higgins & Sellers.
Judge Panel:Brace, J. Barclay, J., dissents.
Case Date:February 06, 1893
Court:Supreme Court of Missouri
 
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Page 484

21 S.W. 484 (Mo. 1893)

114 Mo. 74

The City of St. Louis

v.

The O'Neil Lumber Company, et al.; Doyle et al., Appellants

Supreme Court of Missouri, First Division

February 6, 1893

Certified from St. Louis City Court of Appeals.

Reversed and remanded.

J. H. Trembley for respondent O'Neil Lumber Company.

(1) The amount of $ 976.11, due McLane when he absconded, was a valid legal claim for the recovery of which he, McLane, could then have maintained an action against the city. Yeats v. Ballentine, 56 Mo. 530; Eyermann v. Cemetery Ass'n, 61 Mo. 489; Ahern v. Boyce, 19 Mo.App. 552; Austin v. Keating, 21 Mo.App. 30. (2) A bill, in the nature of an equitable garnishment, it is useless to say, is the proper proceeding for reaching funds belonging to a debtor in the treasury of a municipal corporation, and, when the debtor has absconded, so that the claim cannot be reduced to judgment, a court of equity will entertain jurisdiction in the first instance, and give such a proceeding, founded on an ordinary claim, the same effect as that founded on a judgment at law, after the return of an execution nulla bona. Pendleton v. Perkins, 49 Mo. 565. (3) The claim of the O'Neil Lumber Company being for materials used in doing the work contemplated by the ordinance that appropriated the money now in court, its equities, apart from the question of priority, are equal to those of any other interpleader herein, and by its superior diligence in instituting proceedings on November twenty-second, 1888, against McLane and the city, in the nature of an equitable garnishment, it acquired the right to be first satisfied out of the $ 976.11 then due McLane from the city. City v. Keane, 27 Mo.App. 642.

Rassieur & Schnurmacher for respondents Higgins & Sellers.

(1) A bill in equity, seeking to subject to the payment of a creditors' claim, the assets of his debtor in the hands of one beyond the reach of legal process, is in the nature of and similar to a garnishment at law. It is often styled an equitable garnishment. Pickens v. Doris, 20 Mo.App. 1; Pendleton v. Perkins, 49 Mo. 565; Lackland v. Garesche, 56 Mo. 267. (2) In such case a court of equity will grant the creditor the same rights against the debtor's assets as he would have had in a court of law had the assets been accessible by process. But no new rights are created; the court merely undertakes to furnish a remedy. Authorities, supra. (3) In a garnishment proceeding, only such funds can be reached by the creditor as belong to his debtor; the creditor's rights can be no greater than the debtor's. Weil v. Tyler, 38 Mo. 545; Firebaugh v. Stone, 36 Mo. 111; Karnes v. Pritchard, 36 Mo. 135. (4) Therefore, since McLane was not entitled to that much of the fund in court earned by defendants, Higgins & Sellers, after his departure, it cannot be applied towards the payment of McLane's debts. (5) There is nothing in the contract which gives McLane's subcontractors a lien upon that portion of the fund. The obligation of the sureties is, by the terms of the contract, purely to the city. In this respect it differs from the bonds in the cases of Luthy v. Woods, 6 Mo.App. 67, and City v. Keane, 27 Mo.App. 642. (6) The liability of a surety will not be enlarged by implication. On the contrary, his obligations will be construed strictly and he will not be held beyond the express terms of his contract. Blair v. Ins. Co., 10 Mo. 560; Prior v. Kiso, 81 Mo. 241.

Brace, J. Barclay, J., dissents.

OPINION

Page 485

[114 Mo. 77] Brace, J.

This case is certified here from the St. Louis court of appeals under section 6 of the amendment of the constitution adopted in 1884.

The statement of the case made by Judge Biggs of that court is as follows:

"On the seventeenth day of July, 1888, the municipal assembly of the city of St. Louis passed an ordinance authorizing the board of public improvements to contract for certain alterations and repairs at the House of Refuge. Section 2 of the ordinance is as follows: 'The cost of the above work shall be paid by the city of St. Louis, and the sum of $ 4,500 is hereby appropriated out of funds set apart for improvements, alterations and repairs of the House of Refuge.' The work was let to one James McLane under three separate contracts. Contract number 2071 provided for the erection of two new privy buildings at a cost of $ 2,800. By contract, number 2083, McLane agreed to make certain alterations in the basement and in the dormitory of the old building for the sum of $ 850. The third contract, number 2076, provided for furnishing lumber and laying the floor in the shoe shop of the House of Refuge. The foregoing contracts were signed by McLane as principal and the interpleaders, Thomas C. Higgins and John M. Sellers, as his sureties. Among other things the contracts provided that 'in case the contractor shall abandon the work * * * the commissioner of public buildings shall have power under the direction of the board of public improvements to place such and so many persons as he may deem advisable by contract [114 Mo. 78] or otherwise to work and complete the work to be done, and to use such materials as he may find on the line of said work, or to procure other materials for the completion of the same and to charge the expense of said labor and materials to the contractor; that this expense shall be deducted and paid out of such...

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