City of St. Louis v. The O'Neil Lumber Company
Citation | 21 S.W. 484,114 Mo. 74 |
Parties | The City of St. Louis v. The O'Neil Lumber Company, et al.; Doyle et al., Appellants |
Decision Date | 06 February 1893 |
Court | United States State Supreme Court of Missouri |
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.
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