Bambrick v. Bambrick Bros. Const. Co.

• Decision Date: 05 December 1910
• Citation: 152 Mo. App. 69,132 S.W. 322
• Parties: BAMBRICK v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Court of Appeals

132 S.W. 322

152 Mo. App. 69

BAMBRICK v. BAMBRICK BROS. CONST. CO.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. GARNISHMENT (§ 158) — PLEADING — DENIAL OF ANSWER.

Under Rev. St. 1909, § 2431, providing that the denial, if any, of garnishee's answer, shall contain the grounds on which recovery is sought of garnishee, and garnishee may reply, and the issues made by the denial and reply shall be the sole issues tried, the denial must state whether there is any indebtedness due from garnishee to defendant.

2. GARNISHMENT (§ 114) — MONEYS SUBJECT — WAGES EARNED BETWEEN GARNISHMENT AND ANSWER.

Under Rev. St. 1909, § 2416, providing that service of notice of garnishment shall attach all money of defendant in the garnishee's possession at the time of service of garnishment, or shall come into his possession or be owing by him "between that time and the time of filing his answer," wages of defendant from garnishee, unearned at the time of the notice, but earned and accrued before the filing of garnishee's answer, are subject to the garnishment.

3. GARNISHMENT (§ 162) — EVIDENCE.

Garnishee is not presumed to be liable, and, having denied any indebtedness, plaintiff, to make him liable, must prove the indebtedness, as defendant would have had to do, had he sued garnishee.

4. GARNISHMENT (§ 41) — SALARY.

Salary of defendant may be garnished as soon as earned, though before it becomes due, but not before it is earned.

5. GARNISHMENT (§ 116) — SALARY — PAYMENT BEFORE DUE.

Salary of defendant being garnisheed after it is earned, but before it is due, garnishee cannot relieve himself of the effect of the service of the notice of the garnishment by making payments to defendant before they are due, after such service.

6. GARNISHMENT (§ 114) — SALARY — PAYMENT IN ADVANCE — AGREEMENT BEFORE GARNISHMENT.

Garnishee's agreement with defendant being to pay him for his services a certain amount per month in advance, and this agreement having been made before the garnishment, and not being shown to have been made for the purpose of hindering defendant's creditors, and nothing having been due from garnishee to defendant when notice of garnishment was served, and the salary for each month thereafter, prior to the filing of garnishee's answer, having been paid in advance, garnishee was not liable.

7. GARNISHMENT (§ 116) — SALARY — PAYMENT BEFORE DUE — AGREEMENT AFTER GARNISHMENT.

Where, at the time of garnishment of defendant's wages, there was no agreement that they should be paid him in advance, but thereafter, for the purpose of defrauding plaintiff out of his claim against defendant, it was agreed between him and garnishee that they should be paid in advance, wages earned between the time of garnishment and the filing of garnishee's answer and so paid were subject to the garnishment.

8. GARNISHMENT (§ 172) — INSTRUCTIONS — REFERENCE TO ANSWER.

While garnishee's answer would have been competent evidence, had it been offered, yet it not having been offered, and the jury having been unable to know what agreement defendant and garnishee entered into, as set out in such answer, an instruction was erroneous in authorizing a recovery if defendant entered into an agreement to receive a certain salary payable monthly in advance, "as set out in the garnishee's answer."

9. TRIAL (§ 253) — INSTRUCTIONS.

There being, in garnishment for wages, conflicting evidence as to the material question, whether the agreement, whereby garnishee was to pay defendant his monthly salary in advance, was made prior or subsequent to service of the notice of garnishment, an instruction, authorizing recovery if such agreement was entered into without submitting such question to the jury, was erroneous.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Garnishment proceedings by Malinda Bambrick against Bambrick Bros. Construction Company, garnishee of John Bambrick. Judgment for plaintiff. Garnishee appeals. Reversed and remanded.

T. J. Rowe, Henry Rowe, and Thomas J. Rowe, Jr., for appellant. Frank A. Habig, E. G. Curtis, T. P. Young, and F. A. MacManus, for respondent.

NIXON, P. J.

This was a proceeding on an execution in favor of Malinda Bambrick and against John Bambrick Issued from the circuit court of the city of St. Louis returnable to the October term, 1906. On the return of the execution, on October 2, 1906, plaintiff filed certain interrogatories. On October 8, 1906, Bambrick Bros. Construction Company, a corporation, filed its answer, as garnishee, to plaintiff's interrogatories, in which it was stated that the garnishee paid the defendant, John Bambrick, at the rate of $75 per month for all services rendered by him to said garnishee, and that his wages is paid monthly in advance on the first day of each month. On October 23, 1906, plaintiff filed her amended denial to the garnishee's answer. On motion of the garnishee, a portion of it was stricken out, leaving, substantially, the following: Plaintiff states that she obtained a judgment against the defendant, John Bambrick, on the 6th day of March, 1899, for support and maintenance, whereby it was ordered that he pay to the plaintiff the sum of $50 for the first month, and the further sum of $25 a month thereafter, but that defendant had paid nothing on said judgment. It is alleged that John Bambrick is the president of the Bambrick Bros. Construction Company, garnishee herein, and receives a monthly salary of $300; that the said garnishee has entered into an agreement with the said John Bambrick and pays him in pursuance thereof $75 per month, in advance; that the balance of his said salary of $300 per month is paid to other officers of the garnishee for his use; that the agreement entered into between the garnishee and the said John Bambrick to pay the said John Bambrick the sum of $75 per month in advance, as set out in garnishee's answer, was made with a fraudulent intent to defraud plaintiff out of her claim against the defendant and hinder and delay and defraud plaintiff in the collection of said claim; that the garnishee had full knowledge at the time it entered into said agreement of such indebtedness and made and entered into said agreement for the purpose of defrauding the plaintiff in the collection of her debt; that John Bambrick had been in the employ of the garnishee as president since the 5th day of September, 1905. Plaintiff asked judgment against the garnishee for the sum of $1,200. There was also a second count as to stock having been issued to the defendant and dividends paid on account of such stock; but, as on the trial no claim was made under this count, it is unnecessary to set it out. On December 13, 1906, the garnishee filed a reply to the amended denial, as follows (caption omitted): "Defendant for a reply to the amended denial of its answer herein denies each and every allegation therein contained. For further reply defendant says that there is another action now pending in division 1 of the circuit court of the city of St. Louis, Mo., wherein Malinda Bambrick, the plaintiff herein, is plaintiff, and the Bambrick Bros. Construction Company, garnishee of John Bambrick, are defendants, said case being No. 42,101, for the same cause of action as the one alleged in the reply herein. Wherefore the garnishee herein prays to be discharged hence with its costs."

At the trial, the court, at plaintiff's instance, gave the following instruction: "The court instructs the jury that in case you find and believe from the evidence that John Bambrick entered into an agreement to receive a salary of $75 a...