Atwood v. Hale
| Decision Date | 23 March 1885 |
| Citation | 17 Mo.App. 81 |
| Parties | ROGER A. ATWOOD, Respondent, v. JOHN B. HALE and WILLIAM M. EADS, Garnishees of C. L. BRACKEN, Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Carroll Circuit Court, HON. J. M. DAVIS, Judge.
Reversed and remanded.
Statement of case by the court:
In January, 1880, the defendant, Bracken, was the owner and in possession of a stock of goods in the town of Carrollton Carroll county. On the 29th day of that month he executed a chattel mortgage thereon to one John Stricker, to secure to him a debt of $533.70; which said mortgage was duly acknowledged and put to record of same date. By the terms of the mortgage the mortgagee took immediate possession of the property, with a power to proceed to sell in the usual course of business, to realize sufficient money to satisfy said debt, with the further provision, that if, at the end of ninety days, the sales had not amounted to sufficient to pay off the debt, etc., the mortgagee might, on ten days' notice, proceed to sell the goods at auction in order to pay off any balance of said debt. At the end of the ninety days action was accordingly taken to sell at auction. By consent of the mortgageor the goods were sold in bulk to Perkins & Brown for a sum sufficient to pay off said debt, and a sum in excess of about five hundred dollars. Hale & Eads who then were practicing attorneys-at-law in said town, as the attorneys of Stricker, attended to the sale, and collected the purchase money from Perkins & Brown for Stricker, out of which Stricker received the balance of his debt, they retaining, as such attorneys, the residue of the purchase money.
At the time of the execution of the mortgage the firm of Wilcoxson & Co., creditors of Bracken, the mortgageor, had recovered a judgment against him for the sum of three hundred and thirty-five dollars, and costs taxed in the sum of $8.50. On the day of the execution of the mortgage, and after its admission to record, said Wilcoxson & Co. caused execution to issue on their judgment, under which the sheriff seized said goods. Thereupon Stricker gave the statutory notice to the sheriff of claim of property in said goods, and Wilcoxson & Co. at once gave to the sheriff the indemnifying bond as provided by statute. Then Stricker gave bond, as provided by statute, and retained the possession of the goods; after which he proceeded to sell as aforesaid.
At the date of said mortgage the plaintiff, Atwood, also had recovered judgment against Bracken, in a justice's court. After the sale of the goods under the mortgage, plaintiff sued out an execution on his judgment, under which the constable summoned Hale & Eads as garnishees, on the 9th day of March, 1880. They appeared and answered the usual statutory interrogatories, denying that they owed Bracken anything, or had any property or money of his, but setting up the facts substantially as already detailed, with the additional statement that no settlement had been made between the mortgageor and mortgagee, and that they did not know the state of accounts between them; and also the pendency of the suit touching the right of property between Wilcoxson & Co. and Stricker. During the pendency of the issues in garnishment, in December, 1880, the cause between Wilcoxson & Co. and Stricker came on for trial in the Carroll circuit court, and was decided in favor of Stricker; from which judgment Wilcoxson & Co. appealed to the supreme court. This record does not show whether or not the case on appeal has been determined in the Supreme Court.
In January, 1881, the plaintiff, Atwood, on the trial against the garnishees in the justice's court, recovered judgment for the sum of $91.70, with interest thereon from the 6th day of March, 1880, at the rate of ten per cent., and costs taxed at $5.40. From this judgment the garnishees prosecuted their appeal to the circuit court, where on trial, de novo, the plaintiff again recovered judgment in the sum of $100, with interest thereon from its rendition at the rate of ten per cent. and costs.
The case was tried in the circuit court without the intervention of a jury. The plaintiff asked no instructions. The defendant asked the following declarations of law:
1. If said Hale & Eads received and held the money in question as the attorneys, and subject to order of John Stricker, the mortgagee, then said money or defendants is or are not subject to garnishment as the money or debt of the said C. L. Bracken.
2. If Stricker gave the bond returned with the execution of Wilcoxson & Co., and received the property in question, that is, the stock of goods from the sheriff, then said goods, or the proceeds thereof, to the extent of the Wilcoxson levy, was not subject to garnishment in this cause.
3. If said Stricker held the money in question under the mortgage read in evidence, and no settlement had been made between him and Bracken, then he was not subject to garnishment for any money in his hands arising from the sale of the goods covered by the mortgage.
4. Hale & Eads can make the same defense to this garnishment that Stricker could make, if they held the money as his attorneys.
5. On the record in this cause the judgment should be for defendants.
6. Until a settlement is had between Bracken and Stricker and a balance ascertained to be in his hands belonging or due to Bracken, said money so remaining in his hands or that of his attorneys is not subject to garnishment.
All of which the court refused, except the fourth.
The garnishees bring the case here on appeal.
JNO. L. MERRICK, JAS. F. GRAHAM, and A. H. HALE, for the appellants.
I. The only question on the record is, whether the court erred in refusing the declaration of law asked by appellants, and in rendering the judgment for respondent on the facts as shown by the testimony.
1. The court erred in refusing the first declaration of law asked for appellants. It is clear that Hale & Eads held the money in controversy as the attorneys, and subject to the order of Stricker, and were responsible to him therefor and not to Bracken. Bracken could call on Stricker for an account of his trust, and there was no contract or privity between Hale & Eads and Bracken.
2. The court erred in refusing the second declaration of law asked by defendants. The property was in the custody of the law; it was received by Stricker under judicial process, and could not be seized under other judicial process. Stricker's custody in the property was substituted for that of the sheriff.-- Bates Co. Bank v. Owen et al., 79 Mo. 429.
3. The court erred in refusing the third and sixth instructions. The transaction between Bracken and Stricker constitutes a trust. What claim Stricker may have against Bracken, growing out of the trust, does not appear from the testimony.
II. Could Bracken have sued Hale & Eads and recovered the alleged balance in their hands? If he could not, then the garnishment cannot be sustained.-- Weil v. Tyler, 38 Mo. 545; Scales v. Southern Hotel Co., 37 Mo. 520; Weil v. Tyler, 43 Mo. 581; Lackland v. Garesche, 56 Mo. 267; Sheedy v. Second Nat. Bank, 62 Mo. 17; McPherson v. A. & P. R. R. Co., 66 Mo. 103.
SHEWALTER & SEBREE, for respondent.
I. The surplus proceeds of the mortgaged property in the hands of Hale & Eads was purely legal property. After they had paid Stricker his debt, the mortgaged property, as well as the proceeds, was entirely divested of any trust which the mortgage deed may have imposed upon it.-- Casebott v. Donaldson, 67 Mo. 308; Lackland v. Garesche, 56 Mo. 270; Drake on Attachment, 1st ed., pp. 453 and 521; Webb v. Peal, 7 Pick. 247; Hearn v. Crutcher, 4 Yerger (Tenn.) 461.
II. Bracken, defendant in the execution and mortgageor, had no such interest in the property mortgaged as made it subject to levy and sale, and the proceeds of the sale is in the same condition. Nothing short of an equitable proceeding could attach a valid claim to it.-- Hendricks v. Robinson, 2 Johns. Ch. R. 283; McDermott v. Strong, 4 Ib. 687; Foster v. Potter, 37 Mo. 529.
III. The money in the hands of Hale & Eads was subject to garnishment.-- Rev. Stat., 1879, sects. 2520 and 2543 and notes. Consequently appellant's first and second instructions were properly refused.--Drake on Attach., 2d ed., p. 515.
IV. Litigation between Stricker and Wilcoxson cannot increase the amount of Bracken's debt to them. Neither can they attach any lien to the property as costs or otherwise. Even advances by the parol consent of the mortgagor cannot be tacked on the mortgage debt.-- O'Neill v. Cappell, 62 Mo. 203; Hughes v. Worley, 1 Bibb (Ky.) 200.
V. Appellants' third instruction was properly refused, because no settlement was necessary between Bracken and Stricker, the latter having no claim against Bracken except the amount secured by the mortgage, and that was discharged before appellants were garnished.
VI. Appellants' fourth and fifth instructions were properly refused, the positions therein assumed being untenable. There was no evidence justifying the sixth instruction.
VII. There are no errors in this record materially affecting the rights of appellants.--Rev. Stat., 1879, sect. 3775. There was no evidence in this case which would justify the giving of any of the instructions prayed for by appellants.
I. The judgment in this case cannot stand, if for no other objection, because it awards ten per cent. interest from date of its rendition. We know of no statute authorizing a rate of interest on a judgment against a garnishee, different from that in other judgments at law. The statute (Rev. Stat sects. 2723, 2725) prescribes the rate of interest in this instance as not exceeding six per cent. Had either Bracken or Stricker recovered judgment against...
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