Beal v. McVicker

• Decision Date: 30 December 1879
• Citation: 8 Mo.App. 202
• Parties: JAMES A. BEAL, Respondent, v. WILLIAM D. MCVICKER ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 202

JAMES A. BEAL, Respondent,

v.WILLIAM D. MCVICKER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 30, 1879.

The assignment by a public officer of a portion of his salary not yet due is void.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

LEVERETT BELL, for the appellants, cited Bliss v. Lawrence, 58 N. Y. 442.

J. A. BEAL, pro se, cited: Malone v. Harris, 6 Mo. 454.

HAYDEN, J., delivered the opinion of the court.

This is a proceeding in the nature of a bill in equity to subject money in the hands of the City of St. Louis, one of the defendants, as salary due from the city to the defendant McVicker, a clerk in the Police Court of that city, to the payment of a debt due from McVicker to the plaintiff. The case has been here before, and is abstracted in 3 Mo. App. 592. On the trial the plaintiff testified to the effect that McVicker owed him money, and gave him an order on the city, payable out of McVicker's salary, which order was not accepted by the treasurer, but left with him by the plaintiff. Plaintiff was at liberty to fill the date in the order, and in March, 1875, did so, inserting April 1st. The order was left by the plaintiff with the treasurer before April 1st, the day on which McVicker's month's salary was due; but, upon the plaintiff's calling on the treasurer before that day, he found that McVicker had already drawn his month's salary. This salary was not due until the first day of the month, and the order was given in anticipation of the salary. It appeared that when the plaintiff commenced suit the city owed McVicker more than a month's wages. The court below refused to rule that the plaintiff could not recover, and rendered a decision in effect subjecting the salary of McVicker in the city's hands to the amount of the debt which the plaintiff proved in this case as due from McVicker to the plaintiff.

Assuming, under the decision previously made, that the plaintiff can in this proceeding obtain at once a judgment against the debtor and a decree against the city,--a conclusion in which I do not concur, but which I do not think it here necessary to comment upon, as the general question involved is discussed at length in Kent v. Curtis, 4 Mo. App. 121,--the essential inquiry is whether a public officer has the power to make an assignment of a portion of his salary that is not due at the time of the assignment. The objection is that if any part is assignable by way of anticipation, there can be no...