62 S.W. 695 (Mo. 1901), Stevenson v. McFarland

Citation:62 S.W. 695, 162 Mo. 159
Opinion Judge:BURGESS, J.
Party Name:STEVENSON et al., Appellants, v. McFARLAND et al.; VETTE, Appellant
Attorney:R. M. Nichols and Geo. W. Lubke, Jr. for appellants. McKeighan, Barclay & Watts for respondents.
Judge Panel:BURGESS, J. Sherwood, P. J., and Gantt, J., concur.
Case Date:April 23, 1901
Court:Supreme Court of Missouri
 
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Page 695

62 S.W. 695 (Mo. 1901)

162 Mo. 159

STEVENSON et al., Appellants,

v.

McFARLAND et al.; VETTE, Appellant

Supreme Court of Missouri, Second Division

April 23, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Talty, Judge.

Affirmed.

R. M. Nichols and Geo. W. Lubke, Jr. for appellants.

(1) The findings of fact made by the court at request of McFarland are erroneous, because the evidence shows conclusively that McFarland and Vette reached a complete settlement and termination of the contract between them which both were ready to perform but for the interference of the Buckingham garnishment. This court will review all the evidence and will correct the findings of the trial court if found erroneous. Blout v. Spratt, 113 Mo. 49. (2) The judgment denying plaintiffs the relief sought by them is against the law and the evidence. The evidence showed, without doubt, that the assignment to Kilgen by McFarland was invalid and fraudulent and the court should have so found. Irrespective of the question as to whether Vette and McFarland had ascertained and determined on the interest of the latter in the profits of the former's business, the evidence showed that at the institution of this suit, McFarland had an interest in Vette's business profits which was worth at least $ 6,700; that by the terms of a contract between them a part of this was payable in land; that this interest was a contingent one. It was, therefore, not the subject of garnishment. Scales v. Southern Hotel Co., 37 Mo. 520; Weil v. Taylor, 43 Mo. 531; Heege v. Fruin, 18 Mo.App. 139; Ritter v. Boston Und. Ins. Co., 28 Mo.App. 140; Zeltman v. Commercial Bank, 67 Mo.App. 672. If the contract between Vette and McFarland be construed a contract of partnership, it is equally clear that McFarland's interest in it was not the subject of garnishment. Birtwhistle v. Woodward, 95 Mo. 113. The only way, therefore, by which plaintiffs could reach this property-right of McFarland was by creditor's bill, for where the law fails equity furnishes a remedy. Lackland v. Garesche, 57 Mo. 271; Pendleton v. Perkins, 49 Mo. 565; Pickens v. Dorris, 20 Mo.App. 1. The nulla bona return on the Buckingham execution, showed that this plaintiff had exhausted his remedy at law so that the court acquired jurisdiction. Wade v. Ringo, 62 Mo.App. 414; Edwards & Son Brokerage Co. v. Rosenheim, 74 Mo.App. 621; Humphrey v. Atlantic Milling Co., 98 Mo. 542; Wilkinson v. Goodin, 71 Mo.App. 394. And the court having acquired jurisdiction should have proceeded to do full and complete justice between all the parties. Reyburn v. Mitchell, 106 Mo. 365; Edwards & Son Brokerage Co. v. Rosenheim, supra. Under the law and the facts shown, plaintiffs as against McFarland, were entitled to a decree subjecting his interest in the contract with Vette to their debts, and as against Kilgen a decree that the assignment to him from McFarland be null and void.

McKeighan, Barclay & Watts for respondents.

(1) The judgment of the circuit court rests upon the general principle which this court has stated, as follows: "But in equitable garnishment, as in legal process having a similar object in view, nothing more can be accomplished against the debtor of the defendant than in a direct suit against the former by the latter. The method used to reach the funds in the garnishee's hands can not alter his status nor enlarge or vary the grounds of his defense." Johnson v. Pub. Company, 122 Mo. 104. (2) Under the contract which lies at the foundation of this suit, nothing was due by Vette to McFarland at the time the so-called equitable garnishment began, namely, July 22, 1897, the date of the commencement of this...

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