7 S.W. 465 (Mo. 1888), Birtwhistle v. Woodward

Citation:7 S.W. 465, 95 Mo. 113
Opinion Judge:Norton, C. J.
Party Name:Birtwhistle v. Woodward, Garnishee, Appellant
Attorney:Boyle, Adams & McKeighan for appellant. E. P. Johnson with C. P. & J. D. Johnson for respondent.
Judge Panel:Norton, C. J. Ray, J., absent.
Case Date:March 19, 1888
Court:Supreme Court of Missouri

Page 465

7 S.W. 465 (Mo. 1888)

95 Mo. 113



Woodward, Garnishee, Appellant

Supreme Court of Missouri

March 19, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke, Judge.

Reversed and remanded.

Boyle, Adams & McKeighan for appellant.

(1) A garnishment proceeding cannot be used as a bill in equity for the purpose of setting aside a garnishment proceeding and of winding up a partnership estate and stating an account between them. Epstein v. Block, 10 Mo.App. 352; Birtwhistle v. Woodward, 17 Mo.App. 277. A garnishment proceeding is strictly legal, and no power exists in the court to invoke equitable interference to compel a settlement and adjustment of accounts between parties and partnership. Sheedy v. Bank, 62 Mo. 17; McPherson v. Railroad, 66 Mo. 103; Lackland v. Garesche, 56 Mo. 267. (2) A plaintiff cannot treat a sale of personal property as valid, in order to subject him to the garnishment of the purchase money, and at the same time attack the sale for fraud. Goddin v. Pierson, 42 Ala. 370. (3) The court, at the conclusion of the respondent's case, should have instructed the jury, as requested by the appellant, that upon the evidence submitted the respondent could not recover against the appellant.

E. P. Johnson with C. P. & J. D. Johnson for respondent.

(1) As soon as the delictum on the part of Birtwhistle occurred his wife became a quasi creditor, and, as such, entitled to set aside a conveyance subsequently made by him for the purpose of defrauding her of her alimony, etc., thereafter recovered by her. Barrett v. Barrett, 5 Ore. 411; Bouslough v. Bouslough, 68 Pa. St. 499; Livermore v. Boutelle, 11 Gray, 217; Bailey v. Bailey, 61 Me. 361; Frakes v. Brown, 2 Black. 295; 2 Bish. on Mar. and Div. [6 Ed.] secs. 450, 453. (2) Where property has been fraudulently conveyed, garnishment by a creditor is a proper remedy to reach it. Lackland v. Garesche, 56 Mo. 267; Potter v. Stevens, 40 Mo. 591; Armstrong v. Tuttle, 34 Mo. 432; Brokerage Co. v. Cronin, 14 Mo.App. 587. (3) Garnishment is a proper remedy also where plaintiff had a claim against or lien upon property that had been sold (as respondent had in this case, by reason of her divorce and injunction proceedings), to reach the proceeds of it in the hands of the garnishee. McGuire v. Wilkinson, 72 Mo. 199; Case-bolt v. Donaldson, 67 Mo. 308. (4) Either partner, after...

To continue reading