Bambrick v. Bambrick Brothers Construction Co.

• Decision Date: 05 December 1910
• Citation: Bambrick v. Bambrick Brothers Construction Co., 132 S.W. 322, 152 Mo.App. 69 (Mo. App. 1910)
• Parties: MALINDA BAMBRICK, Respondent, v. BAMBRICK BROTHERS CONSTRUCTION COMPANY, Garnishee, Appellant
• Court: Missouri Court of Appeals

132 S.W. 322

152 Mo.App. 69

MALINDA BAMBRICK, Respondent, v. BAMBRICK BROTHERS CONSTRUCTION COMPANY, Garnishee, Appellant

Court of Appeals of Missouri, Springfield

December 5, 1910

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

Judgment reversed and cause remanded.

T. J Rowe, Henry Rowe and Thomas J. Rowe, Jr., for appellant.

(1) The garnishee should have been discharged after its motion to strike out parts of plaintiff's denial of garnishee's answer had been sustained and plaintiff refused to plead further.R. S. 1899, sec. 621;Mumford v. Keet,154 Mo. 36, 71 Mo.App. 535;MacAdam v. Scudder,127 Mo 345.(2)The decision of the trial court and judgment thereunder violates article 1, section 10, of the Federal Constitution, because it impairs the obligation of the contract between John Bambrick and appellant.Constitution of Missouri, sec. 15, art. 2;Helgert v. Asphalt Co.,173 Mo. 328.(3) The creditor can hold the garnishee only to the extent of the defendant's claim against the garnishee and can acquire no right against the latter except such as the defendant had.Firebaugh v. Stone, 36 Mo. 115.

Frank A. Habig, E. G. Curtis, T. P. Young and F. A. MacManus for respondent.

OPINION

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 Brothers 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 seventy-five dollars 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 fifty dollars for the first month, and the further sum of twenty-five dollars a month thereafter, but that defendant had paid nothing on said judgment.It is alleged that John Bambrick is the president of the Bambrick Brothers Construction Company, garnishee herein, and received a monthly salary of three hundred dollars; that the said garnishee has entered into an agreement with the said John Bambrick and pays him in pursuance thereof seventy-five dollars per month, in advance; that the balance of his said salary of three hundred dollars 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 seventy-five dollars 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 twelve hundred dollars.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 One of the circuit court of the city of St. Louis, Missouri, wherein Malinda Bambrick, the plaintiff herein, is plaintiff, and the Bambrick Brothers Construction Company, garnishee of John Bambrick, are defendants, said case being number 42101, 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 seventy-five dollars a month payable monthly in advance, as set out in the garnishee's answer, for the purpose of defrauding plaintiff out of her claim against him and for the purpose of preventing him from subjecting his salary to the payment of her said claim; and that this purpose was known to the garnishee, Bambrick Brothers Construction Company, at the time it made the agreement to pay him his salary in advance; and that the garnishee entered into said agreement for the purpose of assisting him in said fraudulent purpose; then in that case you shall find a verdict in favor of the plaintiff upon the first count of her denial for such sum as you shall find from the evidence the garnishee paid to the said John Bambrick as salary between the 28th day of June, 1906, the date of the service of the writ of garnishment, and the 8th day of October, 1906, the date upon which said garnishee filed its answer herein, under said agreement."

The principal contention on this appeal is that the plaintiff's amended denial fails to state a cause of action against the garnishee, and that the court erred in giving the instruction for the plaintiff, over appellant's objection.

The rules of pleading in garnishment proceedings are prescribed by our statute, section 2431,Revised Statutes 1909, as follows: ". . . In all cases where the answer of the garnishee is denied, the denial shall contain, specially, the grounds upon which a recovery is sought against the garnishee; and the garnishee shall be entitled to a reply, and the issue or issues made up on the denial and reply shall be the sole issue or issues tried, and the issue or issues shall be tried as ordinary issues between plaintiff and defendant."In the construction of this section it has been uniformly held that the issues raised by the denial and the reply are the sole issues to be tried.[Dodge v. Knapp,112 Mo.App. 513, 87 S.W. 47;Holker v. Hennessey,141 Mo. 527, 42 S.W. 1090.]Like any other pleading, the denial should contain averments which should set forth such special facts as would advise the garnishee of the particular issue of fact which he is expected to meet.The object to be accomplished in proceedings by garnishment is to impound or appropriate a specified sum of money belonging to and due the defendant and owing by the garnishee, and the issue at the bottom of the proceedings is whether the garnishee is indebted to the judgment debtor in any greater sum than the amount admitted in his answer.Hence, it is fundamental that the denial should state whether there is any indebtedness due from the garnishee to the debtor, so that this issue of fact may be presented by the denial.

In this case, the garnishee, in its answers to the plaintiff's interrogatories, denied any indebtedness, the fourth answer being,--"that it pays the said John Bambrick at the rate of seventy-five dollars per month for all services rendered by him to said company, and that his said wages is paid monthly in advance on the first day of each month."Section 2416,Revised Statutes 1909, provides as follows: "Effect of notice of garnishment.--Notice of garnishment, served as provided in this article, shall have the effect of attaching all money, . . . of the defendant in the garnishee's possession or charge, or under his control at the time of the service of the garnishment, or which may come into his possession or...