58 Mo. 438 (Mo. 1874), Royer v. Fleming

Citation:58 Mo. 438
Opinion Judge:VORIES, Judge.
Party Name:AMOS ROYER, et al., Respondents, v. JOHN FLEMING, et al., Garnishees of SMITH, et al., Appellants.
Attorney:A. J. Bader with Hughes & Hughes, for Appellants. McColdrick & Caywood with Edw. Higbee, for Respondents.
Judge Panel:Judge Wagener is absent. The other judges concur.
Court:Supreme Court of Missouri
 
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Page 438

58 Mo. 438 (Mo. 1874)

AMOS ROYER, et al., Respondents,

v.

JOHN FLEMING, et al., Garnishees of SMITH, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874

Appeal from Schuyler Circuit Court.

A. J. Bader with Hughes & Hughes, for Appellants.

McColdrick & Caywood with Edw. Higbee, for Respondents.

OPINION

VORIES, Judge.

In November, 1871, the plaintiffs commenced a suit in the Schuyler Circuit Court, against Patrick Smith and John Smith, to recover the amount of a demand against them for the sum of $408.88. An attachment was issued in said suit, upon which the defendants in this proceeding were garnished as the debtors of said defendants, Smith and Smith. The garnishment was served on the 28th day of November, 1871. Interrogatories were properly filed at the return term of the writ. It is admitted by the parties, that the plaintiffs prosecuted their suit against Smith and Smith to final judgment, in which they recovered the amount of the demand sued for.

The garnishees, Fleming and McCarthy, appeared to the garnishment, and filed an answer to the interrogatories filed by plaintiffs, in which they denied their indebtedness to Smith and Smith in any sum, or on any account whatever.

The plaintiffs filed a denial of the answer of the garnishees, and charged that the said Fleming and McCarthy were indebted to Smith and Smith at the time of the service of the garnishment, in the sum of one thousand dollars for work and labor performed in grading, grubbing and clearing done by said Smith and Smith, under a contract with said garnishees for the grading, etc., for a section of the Missouri, Iowa and Nebraska Railroad, in the county of Schuyler.

The said garnishees, Fleming and McCarthy, filed their replication to said denial of plaintiffs, in which they admitted, that said Smith and Smith were sub-contractors under them, and, as such, were engaged in grading and constructing the line of the Missouri, Iowa and Nebraska Railway; but they aver that said Smith and Smith performed the work performed by them, in grading and constructing the road bed for said railway, under a special contract to perform the whole of the work on section 59 of said road, and have the same completed in a manner and at a time named in said contract, and for prices therein set forth. The said defendants then aver that after said Smith and Smith had partly performed said work, they abandoned the same and never complied with their contract, and that the defendants were put to great trouble and expense in completing said work. The defendants then averred that they had fully paid said Smith and Smith, and were compelled to pay the laborers employed by said Smith and Smith, and who performed work in grading said road under said Smith and Smith, for all work performed by said Smith and Smith under their contract, setting out all the particulars of the payments made by them, in which it is shown that Smith and Smith had performed work under said contract, amounting to about three thousand dollars, all of which, it was averred, had been fully paid, setting forth the particular payments, etc. The defendants then averred, that they did not owe said Smiths on said contract or otherwise at the time of the service of the garnishment, any sum or amount whatever.

Upon the issues, thus presented, the case was tried in the Circuit Court by a jury. Evidence was introduced...

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