Bain v. Chrisman

• Decision Date: 31 July 1858
• Citation: 27 Mo. 293
• Court: Missouri Supreme Court
• Parties: BAIN & WYATT, Plaintiffs in Error, v. CHRISMAN & PORTER, Defendants in Error.

27 Mo. 293

BAIN & WYATT, Plaintiffs in Error,

v.CHRISMAN & PORTER, Defendants in Error.

Supreme Court of Missouri.

July Term, 1858.

1. Every execution must be founded on a legal judgment.

2. Where a justice of the peace, in the case of separate suits by different parties against the same person, improperly renders a joint judgment in favor of the two separate plaintiffs, and certifies the same as a single judgment to the Circuit Court, any execution or other proceeding instituted thereon should be quashed and set aside.

3. To entitle a garnishee to indemnification for expenses incurred by him, it is not necessary that he should appear and answer in the garnishment proceeding.

Error to Moniteau Circuit Court.

The facts of this case would appear to be substantially as follows: Jacob Bain and J. L. Wyatt instituted separate attachment suits, before a justice of the peace, against one Farmer. One Chrisman was summoned as garnishee in said suits, and judgments were rendered against him. These judgments the justice seems to have consolidated into one judgment in favor of Bain and Wyatt. He certified the same to the Circuit Court as a joint judgment against Chrisman in favor of Bain and Wyatt. An execution issued from the office of the clerk of the Circuit Court against said Chrisman. One Porter was summoned as garnishee. Chrisman and Porter moved the court, separately and jointly, to quash the execution, and to dismiss the garnishment and attachment of Porter. Porter also prayed to be allowed reasonable attorney's fees, etc. The court sustained the motions, and rendered judgment against Bain and Wyatt, in favor of Porter, for ten dollars for his costs and attorney's fees.White, for plaintiffs in error.

I. The court erred in sustaining the motion of Chrisman to quash the execution. He was not prejudiced by the justice's entering a single judgment in favor of Bain and Wyatt. (R. C. 1855, p. 162, §18; Rutherford v. Wimer, 3 Mo. 11; Franse v. Owens, 25 Mo. 334; 10 Mo. 304.) It was not for Porter to come in as a debtor of Chrisman, and insist that the proceedings between the plaintiffs and Chrisman were irregular. A garnishee can only answer when brought into court. The court erred in allowing an attorney's fee when the garnishee did not answer.

Douglass & Hayden, for defendants in error.

SCOTT, Judge, delivered the opinion of the court.

It would seem to be a vain undertaking to attempt to support such proceedings as are contained in the record before us. Two plaintiffs, by separate actions-- there being no privity whatever between them--obtained separate judgments against the same garnishee. Afterwards a transcript of these judgments is filed in the clerk's office of the Circuit Court. This transcript is made out in such way as makes...