Roach v. Montserratt Coal Co.

• Decision Date: 30 April 1880
• Parties: ROACH v. THE MONTSERRATT COAL COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 398

ROACH

v.THE MONTSERRATT COAL COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Johnson Circuit Court.--HON. WM. S. SHIRK, Judge.

AFFIRMED.

J. M. Crutchfield and S. P. Sparks for appellant.

The statement in the justice's docket that “the plaintiff made proof of his cause of action,” does not mean that evidence was heard on the question whether the garnishee was indebted to Cooper, but that plaintiff introduced evidence to show that he had a judgment against Cooper which had never been satisfied. The garnishee's affidavit filed in support of his motion for new trial, is explicit that no evidence was offered before the justice, showing that he was indebted to Cooper, and this is not controverted.

HENRY, J.

Roach & Co. obtained a judgment before a justice of the peace against Cooper on the 4th of May, 1876, for $96.70, and on the 19th day of January, 1877, the Montserratt Coal Co. was summoned as garnishee, to appear before said justice on the 25th of January, 1877. Failing to appear, a judgment was rendered against the garnishee for $96.70, and on the 8th day of February, 1877, said company filed its motion to set aside said judgment, which was overruled, and on the 21st of February following the company filed its petition to the circuit court of Johnson county for a rule on the justice to allow an appeal, which was granted. On the 19th of June, 1877, on motion of Roach & Co., the appeal was dismissed, and from the judgment of the circuit court dismissing the appeal the said company has prosecuted an appeal to this court. In the case of Brotherton v. Anderson, 6 Mo. 388, relied upon by defendant, it was admitted that the justice heard no evidence touching the indebtedness of the garnishee to the defendant in the execution, and yet rendered a judgment against him by default for the full amount of the judgment against the judgment debtor. Not so in the case at bar--no such admission is made, nor does it appear from the justice's transcript that he rendered the judgment against the garnishee without first hearing testimony touching its indebtedness to Cooper. On the contrary, it appears from the transcript of the docket that the “plaintiffs having made proof of their cause of action, it is, therefore, considered and adjudged,” &c. What cause of action? It may be said, the original cause of action against Cooper; but there had been a judgment against Cooper in that cause previously rendered, and it is but fair to the...