Birtwhistle v. Woodward

• Decision Date: 07 April 1885
• Citation: 17 Mo.App. 277
• Parties: R. S. BIRTWHISTLE, Respondent, v. C. B. WOODWARD, Garnishee, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 277

R. S. BIRTWHISTLE, Respondent,

v.C. B. WOODWARD, Garnishee, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 7, 1885.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and judgment.

JAMES S. GARLAND and M. F. WATTS, for the appellant: A partner's interest can not be reached by garnishment.-- Fenton v. Block, 10 Mo. App. 536.

E. P. JOHNSON, for the respondent: Where property has been fradulently conveyed, garnishment by a creditor, is a proper remedy to reach it.-- Lackland v. Garesche, 56 Mo. 367; Potter v. Stevens, 40 Mo. 591; Armstrong v. Tuttle, 34 Mo. 432; St. Louis Brokerage Co. v. Cronin, 14 Mo. App. 587.

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

It is not necessary to state the facts of this case at any length, because we regret to find at the outset that the plaintiff has mistaken her remedy. She filed a bill for a divorce against her husband, asking for alimony, stating that he was a partner with Charles B. Woodward in a certain business in St. Louis; that he was about to sell out his interest in the partnership property to defraud her of her alimony, and asking for an injunction to restrain him from so doing. Pending the suit the defendant therein sold out to his partner, Woodward, his interest in the partnership assets for $6000, which Woodward paid to him in cash. Afterwards, the plaintiff obtained a judgment against him for a divorce, for alimony, and for an injunction against the transfer of his property in accordance with the prayer of the petition. She sued out an execution under an order awarding her alimony pendente lite and counsel fees, which had been made to her, and summoned Woodward as garnishee. He answered; his answer was denied; an issue was made on the denial, which was tried by a jury, resulting in a verdict and judgment for the plaintiff against him as garnishee, from which he prosecutes this appeal.

We must hold on the authority of Fenton v. Block (10 Mo. App. 536), that the proceeding by garnishment will not lie in such a case. It is not questioned that a judgment creditor may proceed by garnishment, even where there has been a fraudulent conveyance by the judgment debtor to the garnishee, as this court lately held in the case of St. Louis Brokerage Co. v. Cronin (14 Mo. App. 586). But this proceeds upon the idea that the fraudulent conveyance is merely void as to a judgment creditor of the vendor or grantor; that the case stands just as though it had not been made, except that the fraudulent transferee occupies the position of a bailee or trustee of the property of the transferor. But the proceeding by garnishment is, nevertheless,...