Benton v. Lindell

• Decision Date: 31 March 1847
• Citation: 10 Mo. 557
• Parties: BENTON, GARNISHEE OF THE BANK OF MISSOURI, v. LINDELL.
• Court: Missouri Supreme Court

10 Mo. 557

BENTON, GARNISHEE OF THE BANK OF MISSOURI,

v.LINDELL.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

GANTT, for Plaintiff. 1. That it was erroneous and irregular in the Circuit Court to cause the issues of fact to be tried before the determination of the issues of law, and in fact, without making, up to this time, any disposition of the issues of law. Rev. Code of 1845, title Practice, p. 816, § 1; Menefee v. D'Lashmutt et al. 1 Mo. R. 258. 2. That it was erroneous and irregular for the Circuit Court to take upon itself, without the express consent of both parties, the trial of an issue of fact without the intervention of a jury. Pratte & Cabanne v. Corl, 9 Mo. R. 163; Sutton v. Clark, 9 Mo. R. 559. 3. That an irregular judgment may be set aside for irregularity at any time within five years from the rendition thereof, and therefore the motion was not too late, being filed the subsequent term. Rev. Code of 1845, p. 831, § 8. 4. That there was no need of a bill of exceptions, and no need for the plaintiff in error to have excepted to the ruling of the court below, in order to present the case for review to this court. Carr v. Edwards, 1 Mo. R. 137; West v. Miles, Assignee, &c., 9 Mo. R. 167.

GAMBLE & BATES, for Defendant. 1. There were no issues of law in this case. The plaintiff had made issues of fact, by traversing parts of the answer; and also excepted to certain matter in the answer, not responsive to the allegations and interrogations, and vaguely invoking the statute of limitation, to protect him against the debts admitted by his answer. That part of the answer was wholly immaterial, and the plaintiff need not have noticed it. The only notice he took of it was to point out its objectionable character. He did not demur to it, and indeed a demurrer would have been inadmissible. Rev. Code p. 140-1, §§ 31, 32; and Tuttle v. Gordon, 8 Mo. R. 152. The garnishee made no response to these exceptions, and so there is no pretense of an issue of any sort upon that matter. And the court, no doubt considering that whole matter immaterial, took no notice of it in determining this case. 2. If there had been issues of law in the case, the garnishee is wrong in supposing that it is an error for which the judgment ought to be reversed, that the issues of law were not determined before the trial of the issues of fact. The statute does indeed say (Rev. Code, p. 816, § 1), “when there are several issues of law and of fact in any suit, the issues of law shall be first determined.” But that is only directory--a rule of convenience. Suppose two pleas to a declaration--issue on one of them, and demurrer to the other, and rejoinder--verdict of a jury for the plaintiff on the first, and afterwards a decision by the court on the demurrer in favor of the same party; the case comes here on writ of error, and this court finds both issues legally and rightly determined--is this court bound to reverse the judgment simply because the issues, though rightly determined, were not determined in the prescribed order of time?

NAPTON, J.

Lindell recovered a judgment against the Bank of Missouri, in 1825, and not being able to make the debt by fieri fucias, sued out an attachment, under the statute, and summoned Benton as garnishee. This was in 1837. After a variety of proceedings, not material to be noticed, Benton filed his answer in 1841. The answer was excepted to, and the exceptions sustained. At the April term, 1844, a further answer was filed, which in substance denied all indebtedness to the Bank at the time of the garnishment, and relied also on the statute of limitations. So much of the answer as denied indebtedness was traversed, and exceptions were taken to that part of the answer which set up the statute of limitation. The objection to this part of the answer was, that the garnishee having been a corporator and director of said Bank, and owing the debt to said Bank in a fiduciary capacity, he could not avail himself of the statute...