Banking House of Wilcoxson & Co. v. Darr
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 227,139 Mo. 660 |
| Parties | Banking House of Wilcoxson & Company v. Darr et al.; Steadley, Garnishee, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
Thomas & Hackney for appellant.
(1) The court erred in admitting in evidence the certified copies of assessment lists. Strother v. Christy, 2 Mo. 148; Railroad v. Suydam, 17 N. J. L. 60; State v Cake, 24 N. J. L. 516. While the statute (R. S. 1889 sec. 7534) provides that the assessor shall file assessment lists with the county clerk, by whom they shall be preserved and kept, it does not authorize copies thereof, certified to by the clerk, to be used as evidence. It gives the clerk custody of the original lists, and that is all. These lists are in no sense "records of proceedings of any court" contemplated by section 4881, Revised Statutes 1889. There is no statute in this state making certified copies of any and all documents in the county clerk's office evidence. The legislature has seen fit to limit the use of certified copies to those made by particular officers of particular records. R. S. 1889, ch. 62. (2) It is a well settled rule that where an officer is merely intrusted with the custody of records and papers, and is not authorized by statute to make copies, he has no more authority for that purpose than any other person. And a certified copy made by such officer is not admissible in evidence. State v Cake, 24 N. J. Law, 517. (3) It was not shown that garnishee had signed or sworn to the original lists, and this proof was indispensable, even though the contents of the lists (the execution being proved) could be shown by certified copies. (4) The court erred in excluding the evidence, in the deposition of W. Z. Darr, of the entries in his books, relating to the execution of the notes to Steadley and the consideration thereof. These books were Darr's private books; the entries were shown to have been made at the time of the transaction. It was not necessary to attach the original books to the deposition as exhibits, nor to produce them on the trial. Petersburg, etc., Co. v. Manhattan Ins. Co., 66 Ga. 446. (5) The second count of plaintiff's denial (upon which the recovery was had) does not state facts sufficient to constitute a cause of action against the garnishee. The denial must state a cause of action, otherwise the garnishee is entitled to be discharged. R. S. 1889, sec. 5234; Minor v. Rogers Coal Co., 25 Mo.App. 84; Brown & Ham v. Gummersell, 30 Mo.App. 345. If the plaintiff sought to recover from the garnishee on account of an indebtedness owing by garnishee to the judgment debtor, plaintiff should have pleaded facts sufficient to show the existence of the indebtedness, and also that it was due as a money demand, and unpaid. Weil v. Tyler, 43 Mo. 581. It is well settled that the plaintiff must allege all such facts as he is required to prove. State to use, etc., v. Bacon, 24 Mo.App. 403. The averment of such facts is an essential requisite which garnishee did not waive by failing to demur, or by pleading over, or by going to trial. State to use, etc., v. Bacon, 24 Mo.App. 406, and cases cited. (6) There was no legal evidence before the jury sufficient to authorize the submission to them of the issue of fraud and indebtedness of Steadley, growing out of the turning over of the $ 5,000 draft by Darr to Steadley. The bona fides of the transaction was amply shown by the only substantial evidence in the case. Steadley was a creditor and had a perfect right to receive payment of his debt. Robinson v. Dryden, 118 Mo. 539; Buckner v. Stone, 48 Mo. 409; Funkhouser v. Lay, 78 Mo. 462. (7) Instruction number 4 given for plaintiff, authorized a recovery against garnishee on an issue not raised by the pleadings. It was not averred in the denial that the draft turned over by Darr to Steadley was to be held and used by Steadley for the use and benefit of Darr, or for the purpose of concealing the same from the creditors of said Darr. Bullene v. Smith, 73 Mo. 151. (8) The seventh instruction given for plaintiff told the jury to take into consideration the insolvency of Darr and the relationship of the parties. This instruction could have been asked for no other purpose than to mislead and unduly influence the jury, by singling out and giving undue prominence and significance to certain facts in the case, and commenting on the evidence. McFadin v. Catron, 120 Mo. 274; Barr v. City of Kansas, 105 Mo. 559; Judd v. Railroad, 23 Mo.App. 62; Meyer Bros. Drug Co. v. McMahan, 50 Mo.App. 23. (9) There was no evidence adduced on the trial that garnishee, at the time of garnishment, had in his custody $ 1 of the proceeds of the $ 5,000 draft. If Steadley received the proceeds of the draft, to be held and used for Darr, or for the purpose of concealing the same from Darr's creditors, this would not make him Darr's debtor. (10) The court erred in refusing to set aside the verdict of the jury. The finding of the jury having been for the plaintiff only on the second count of the denial was, in effect, a finding for the garnishee on the first count. Hoyle v. Farquharson, 80 Mo. 377. (11) The court erred in adjudging that the judgment against the garnishee should bear eight per cent interest.
Hale & Son and John W. Seebree for respondent.
(1) The admissibility of documentary evidence does not depend upon express statute, and in the absence of a statute the common law rules of evidence may be resorted to in proper cases. Muldrow v. Robinson, 58 Mo. 349. Certified copies of these tax assessment lists by the county clerk having them in lawful custody, were admissible in evidence at common law as "office copies." 1 Greenl. Ev. [13 Ed.], sec. 507, p. 558. That the originals were admissible can not successfully be gainsaid. The trial court had no power to compel the county clerk of Jasper county to transport these lists to distant parts of the State, hence "office copies" are admissible ex re necessitate. Otherwise there would be a failure of justice in this case. (2) The book entries made by Darr were properly excluded. They were nothing more than his declarations in his own favor, and that of his assignee of the draft. The books were not produced. Darr testified as to the time when he executed the alleged notes to Steadley and this was sufficient proof of that fact. Anderson v. Volmer, 83 Mo. 404; Nelson v. Nelson, 90 Mo. 464. These book entries were not offered to refresh the memory of the witness, nor were the originals alleged to have been lost or destroyed. (3) Respondent admits that the denial of garnishee's answer by plaintiff, and the former's reply make up the issues, and that such denial takes the place of a petition and must state a cause of action with reasonable certainty. St. Louis Coffin Co. v. Barton, 15 Mo.App. 280, 284; Lee et al. v. Tabor et al., 8 Mo. 323. It certainly can not be maintained that plaintiff's denial absolutely states no cause of action, and if defectively stated the defects are waived by pleading thereto by the garnishee. Bank v. Scalzo, 127 Mo. 165; Grove v. Kansas City, 75 Mo. 672; Bank v. Trenton, 75 Mo. 380. Especially is such a defective statement good after verdict, no surprise being alleged on the trial. Henry v. Sneed, 99 Mo. 424; Garth v. Caldwell, 72 Mo. 622; Donaldson v. County of Butler, 98 Mo. 167; Grace v. Nesbitt, 109 Mo. 15; Hughes v. Carson, 90 Mo. 399. (4) There is no question of conversion in the case. The transaction as between Darr and Steadley was valid, and although valid between them, if invalid as to Darr's creditors, plaintiff could recover without proving a case of conversion. It was a case of fraud and not conversion. Garnishee having tried the case, and submitted his instructions on the theory that the case was one at law and that the relation of debtor and creditor existed between Darr, defendant, and Steadley, garnishee, must stand or fall by the position thus taken. Seckinger v. Mfg. Co., 129 Mo. 603. (5) The acts, concluct and manipulations between Darr and Steadley culminating in the transfer of this money and the coincidence of the purchase of the livery stable by Steadley, the attempt to transport the money by Darr bodily instead of by draft to Steadley in Jasper county and various other pointers and indicia of fraud and unusual manner of dealing between them at the time of the transaction are sufficient evidences of fraud to go to the jury. Van Ralte v. Harrington, 101 Mo. 608. Proof of fraud need not (and often can not) be of a direct, positive character, but may be gathered from surrounding facts and circumstances indicative of a design to hinder, delay or defraud creditors. Bergert et al. v. Borchert, 59 Mo. 80; Renney v. Williams, 89 Mo. 139; Robinson v. Dryden, 118 Mo. 539. (6) An instruction, though misleading, does not constitute reversible error, if the law is otherwise fairly and fully laid down so as to cover all the issues in the case. Deweese v. Railroad, 128 Mo. 423. (7) Fraudulent transfer may be tried in garnishment proceeding. Straus v. Ayers, 34 Mo.App. 255; Humphries v. Atlantic Milling Co., 98 Mo. 550; State to use v. Mason, 112 Mo. 374. (8) The case was tried by the parties purely as an action at law without any suggeston of equitable questions, and it is now too late on appeal for either party to raise such a question. Whitstore v. Shaw, 70 Mo. 575.
On December 8, 1892, the respondent, the Banking House of Wilcoxson & Company, recovered judgment against W. Z. Darr and John R. Wagaman, partners, in the circuit court of Carroll county, for $ 3,169.39, being the balance due on a promissory note executed by said firm. Execution issued on this judgment to the...
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