Bank of Missouri v. Bredow

• Decision Date: 31 March 1862
• Citation: 31 Mo. 523
• Parties: THE BANK OF THE STATE OF MISSOURI, Respondent, v. THEODORE BREDOW, Appellant.
• Court: Missouri Supreme Court

31 Mo. 523

THE BANK OF THE STATE OF MISSOURI, Respondent,

v.THEODORE BREDOW, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. Where, by virtue of an attachment, a garnishee is summoned who has in his possession notes, bills and evidences of debt belonging to the defendant in the attachment, the garnishee has the right to sue for and collect such notes and bills, until an order is made by the court, or the judge in vacation, requiring such choses in action to be delivered to the sheriff, or a receiver appointed under the statute.

2. When the garnishee sues upon a bill endorsed to him for collection, the fact that the plaintiff has been summoned as garnishee in an attachment against the beneficial owner of the bill, is no defence.

3. The act, approved November 23, 1857, entitled “An Act in relation to certain Bank paper in this State,” was a waiver by the state of all forfeitures imposed upon the banks of this state, incurred under the provisions of the act of 1855, p. 287, § 5, for dealing in the paper of the suspended banks of this state, prior to the date of said waiver. An answer, therefore, which pleaded the violation of said 5th section of the act of 1855, in relation to illegal banking, in bar of the right of the plaintiff to sue, was properly stricken out on motion.

Appeal from St. Louis Court of Common Pleas.

This was a suit upon a bill of exchange drawn by one Pike on defendant in favor of Pike, endorsed by him to the Ohio Life Insurance and Trust Company, and by it endorsed to the plaintiff.

The defendant filed an answer, setting forth that said bill at its maturity belonged to the Ohio Life Insurance and Trust Company, and was endorsed to the plaintiff only for collection; that, before the commencement of this suit, by virtue of attachments issuing from the St. Louis common pleas against said company, the plaintiff had been summoned as garnishee and had answered that it held said bill for said company; the answer further stated, that said bill had been attached by the sheriff of St. Louis county as the property of said Ohio Life Insurance and Trust Company, and therefore that plaintiff's right to the bill, and to sue thereon, became, by the laws of this state, vested in such person as might be by said court appointed receiver; or if no receiver were appointed, then in the said sheriff; and concluded that the plaintiff had no right to sue upon said bill.

The answer further alleged that the plaintiffs, between October 1, 1857, and November 17, 1857, being a corporation created by the laws of this state, did, contrary to the provision of section 5 of the act to prevent illegal banking, & c., (R. C. 1855, p. 287,) pass and receive within this state suspended and non-specie-paying bank notes issued as currency, to-wit, notes issued by the suspended banks of this state; whereby plaintiff forfeited its charter, and could no longer sue in its corporate name.

Plaintiff moved to strike out the answer, and the motion was sustained and judgment rendered for the plaintiff. Defendant excepted and appealed.

S. H. Gardner, for appellant.

I. At the commencement of this suit, by operation of the statute and the attachment issued, the right to sue and recover had become vested in the sheriff of St. Louis county, who could alone maintain an action upon the bill; and this could be pleaded and proved. (R. C. 1855, p. 244-5; §28, p. 247; § 36, p. 249; §38 & 41, p. 250.)

II. So much of the answer as sets up the forfeiture of the charter, by the passing of the notes of non-specie-paying bank notes, was a good defence to the action, as decided in the case of Christian University v. Jordan, 29 Mo. 68; R. C. 1855, p. 287, § 5.

W. T. Wood with C. D. Drake, for respondent.

I. A party to whom a bill is endorsed for collection may sue in his own name. (Webb et al. v. Morgan et al., 14 Mo. 428; Page et al. v. Lathrop, 20 Mo. 589; 29 Mo. 456; R. C. 1855, p. 320.)

II. The garnishment of plaintiff did not affect its right to sue; it was its duty to collect the money as speedily as possible.

III. The bank act authorizes the banks to deal in the paper of any of the banks of this state. (Act 1857, p. 10, art. 1, § 4.)

DRYDEN, Judge, delivered the opinion of the court.

The question presented in this case for the consideration of the court is, whether the matters set up in the answer, or any of them, constitute a bar to the plaintiff's action. If so, the court erred in striking out the answer, and its judgment must be reversed; otherwise, its action was proper and its judgment ought to be affirmed.

1. As to the matter of the answer regarding the garnishment of the bank, and the attachment of the bill. Did the service of the garnishment have the effect in law of suspending the right of the bank to sue on the bill, the foundation of the present suit, and to transfer that right to the sheriff, the attaching officer? In support of the affirmative we are referred to sections 22, 28, 36, 38, and 41 of art. 1 of attachment law of 1855. (See R. C. 1855, pp. 244 & '5, 247, 249, and 250.)

The fourth subdivision of the 22d section, which is all that relates to the question under consideration, provides,

“ Fourth. When goods and chattels, money, or evidences of debt, are to be attached, the officer shall take the same and keep them in custody, if accessible; and, if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summon such person as garnishee.” The 36th section has relation to the power of the court over the garnishee, and over the property credits and effects of the defendant in the hands of the garnishee, and is as follows: “If it appear that a garnishee, at or after his garnishment, was possessed of any property of the defendant, or was indebted to him, the court, or judge in vacation, may order the delivery of such property, or the payment of the amount owing by the garnishee, to the sheriff, or into court, at such time as the court may direct; or may permit the garnishee to retain the same, upon his executing a bond to the plaintiff,” &c. Section 38: “when notes, bills, books of...