27 S.W.2d 1063 (Mo.App. 1930), Stephens v. Bragg City

Citation27 S.W.2d 1063, 224 Mo.App. 469
Opinion JudgeCOX, P. J.
Party NameS. E. STEPHENS, PLAINTIFF IN ERROR, v. BRAGG CITY, A MUNICIPAL CORPORATION, DEFENDANT IN ERROR. [*]
AttorneyVon Mayes for plaintiff in error. Ward & Reeves for defendant in error.
Judge PanelCOX, P. J. Bailey and Smith, JJ., concur.
Case DateMay 20, 1930
CourtCourt of Appeals of Missouri

Page 1063

27 S.W.2d 1063 (Mo.App. 1930)

224 Mo.App. 469

S. E. STEPHENS, PLAINTIFF IN ERROR,

v.

BRAGG CITY, A MUNICIPAL CORPORATION, DEFENDANT IN ERROR. [*]

Court of Appeals of Missouri, Springfield

May 20, 1930

Writ of error to Pemiscot County Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

Von Mayes for plaintiff in error.

(1) The deposit in controversy was a general deposit with the bank, possessing no trust quality, being in the nature of a loan, and the bank became an ordinary creditor of the city to the amount of such deposit, the title to the money having passed to the bank. 7 C. J., sec. 305, p. 628, sec. 308, p. 633; Wm. R. Compton Co. v. Trust Co., 279 S.W. 746; Paul v. Draper, 158 Mo. 197, 73 Mo.App. 566; Craig v. Bank, 238 S.W. 507; State v. Pate, 268 Mo. 431; American Bank v. People's Bank, 255 S.W. 943; Missouri Mut. Assn. v. Banking Co., 290 S.W. 100; 28 C. J. 119, notes 11, 12 and 13. (2) However a special deposit does not create a debt, but a trust, and trust funds are not subject to legal garnishment. Equity would be the remedy to reach such fund. But the deposit in question was not a special deposit. Butcher v. Butler; 134 Mo.App. 61; Lackland v. Garesche, 56 Mo. 267; Bayou Drainage Dist. v. Chapline, 220 S.W. 807 (Ark.); 28 C. J., sec. 162, pp. 116-7. (3) A mandamus to require city to levy a tax to pay a judgment against it will not issue until an execution has been issued and returned nulla bona, or the petitioner shows that the city has nothing liable to execution. Sec. 1685, R. S. 1919; State ex rel. Hambleton v. Dexter, 89 Mo. 188; Hubble v. Maryville, 85 Mo.App. 165. (4) Public or trust fund generally deposited in a bank, create an ordinary debt, which is not impressed with a trust. Paul v. Draper, 158 Mo. 197; Wm. R. Compton Co. v. Trust Co., 297 S.W. 746. (5) The city waived any right of exemption by using the debt to pay other creditors. 25 C. J., sec. 208, p. 119; 23 C. J., sec. 105, p. 355. (6) The plaintiff's claim, being for salaries due him as city marshal, is a preferred claim, made so by statute. State v. Norvell, 80 Mo.App. 180; Sec. 1685, R. S. 1919.

Ward & Reeves for defendant in error.

(1) The only money that the city of Bragg City had on hand in the First National Bank, garnishee, was money which it had previously obtained by virtue of sale of bonds, the issue of which had been duly...

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