Brecht v. Josephine

• Decision Date: 03 June 1879
• Citation: 7 Mo.App. 300
• Parties: GUSTAVUS V. BRECHT, Respondent, v. JOSEPHINE A CORBY, EXECUTRIX, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 300

GUSTAVUS V. BRECHT, Respondent,

v.JOSEPHINE A CORBY, EXECUTRIX, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 3, 1879.

1. The return of a constable cannot be questioned collaterally.

2. That only is the return of an officer to which he signs his name when he returns the writ.

3. After the writ has been returned, a returning-officer has no right to amend his return to initiatory process so as to make it show what he may consider to be the truth of the case.

4. Where there are two writings in the form of a return, inconsistent with each other, each signed by the officer, but one of which is crossed out by an ink line drawn through it, testimony as to which writing was upon the writ when returned is admissible.

5. A return can be amended by leave of court, but amendments should be permitted only upon affidavit, and not then where the officer depends upon his memory alone after the lapse of months.

6. In garnishment, the return of the officer must show that the property was attached in the garnishee's hands, or the court obtains no jurisdiction as to the res.

7. An action of garnishment abates upon the death of the garnishee, and cannot be revived against his administrator,--not even by appearance and stipulation of the administrator.

APPEAL from St. Louis Circuit Court.

Reversed and dismissed.THOROUGHMAN & WARREN, for appellant: Testimony as to which of two writings indorsed upon a writ is the officer's return is admissible.--Freem. on Ex., sects. 353, 358, 366, and cases cited; Gwynne on Sheriffs, 452; Dalton on Sheriffs, 188, 189. Property must be attached in the garnishee's hands.-- Norvell v. Porter, 62 Mo. 311; Keane v. Banking House, 4 Mo. App. 507. An executor is not liable to garnishment prior to the order of distribution.--Wag. Stats. 664, sect. 3; Drake on Attach., sect. 494-497; Freem. on Ex., sect. 131. In garnishment, the action abates upon the garnishee's death.-- Tate v. Morehead, 65 N. C. 681; Cushing v. Robertson, 10 Mo. 374.

CASTLEMAN & LAUGHLIN, for respondent: “The return of a constable cannot be collaterally questioned, but is conclusive upon the parties to the suit.”-- Reeves v. Reeves, 33 Mo. 28. Return may be amended.-- Corty v. Burns, 36 Mo. 194.

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

Brecht recovered judgment before a justice against one Aldrich. Francis P. Corby was summoned as garnishee on execution. After an amended answer had been filed in the Circuit Court, Corby died, and the action was revived in the name of his executrix. On trial, a verdict was rendered that at the time of the garnishment Corby had in his hands property belonging to the defendant in the execution, worth $1,500; whereupon the court made an order that the executrix turn over the property described in the verdict to the sheriff; and the executrix failing to comply with the order, judgment was entered in favor of the plaintiff against the executrix and the surety on the appeal bond, for the amount of the original judgment, with interest and costs.

On the trial, the plaintiff offered in evidence the execution and the return of the constable. On the back of the execution appeared the following written matter: “Executed this writ in St. Louis Township, the 7th day of October, 1875, by summoning as garnishee Francis P. Corby & Co., and by delivering a writ of garnishee summons to Francis P. Corby, a member of the above-named firm, to appear before Justice John M. Young on the 20th day of October, 1875, to answer such questions as may be propounded to him touching the indebtedness of said firm to the defendant herein. Thomas C. Lidwell, constable. No goods or chattels of the defendant herein found whereupon to levy this writ to make this debt or costs, or any part thereof Done in St. Louis Township, this 19th day of November, 1875. Thomas C. Lidwell, constable; J. J. McGarry, dep.”

This writing was crossed out, two lines crossing each other being drawn in ink across its face. Underneath it was written what the plaintiff claims to be, and introduced as, the return to the writ, in the following words: “Executed this writ in St. Louis Township, in St. Louis County, on the 7th day of October, 1875, by summoning as a garnishee herein Francis P. Corby, by delivering to him a written notice of such garnishment, requiring him as such garnishee to appear before the within named justice, John M. Young, at his office in said township, on the 21st day of October, 1875, then and there to answer such interrogatories as may be propounded to him touching his indebtedness to the defendant, Nathan E. Aldrich; further, by declaring to said Corby that I did levy upon and attach all moneys, goods, or effects, rights of action, and other property in his hands or possession, or under his control, belonging to said defendant, or in which he had any interest, and also all debts due, owing, or belonging to said defendant. No goods or chattels herein found whereupon to levy this writ, or make this debt or costs or any part thereof. Done in St. Louis Township, this 19th day of November, 1875. Thomas C. Lidwell, constable; per Thomas Hand, deputy.”

The defendant objected that it did not appear that what purported to be a return was made by an officer. The attorney of the plaintiff was then put on the stand, and proved that the name “Thomas Hand” was written by the man who bore that name, and that he was, and for five years had been, a deputy of Lidwell. The defendant's counsel then asked permission to interrogate the witness as to when the return was written. All further testimony in the matter was excluded, at the instance of the plaintiff, on the ground that it was incompetent to impeach the return. The witness was then asked whether he had seen the writ after its return to the justice, with the return signed by McGarry, deputy, then upon it, and whether the signature of McGarry was written by him, and whether he was a deputy of Lidwell at the time. The questions were objected to, and the objection sustained. The defendant's counsel offered an affidavit of surprise, and asked for a continuance. The motion was overruled. The execution and return signed by Hand were then admitted, against the objection of the defendant, who insisted that the return of Hand was incompetent for the reason that the defaced return of McGarry was unexplained, and that there was no evidence of the authenticity or date of the Hand return, and that the latter was not written upon the execution itself, but upon a paper attached to the execution.

McGarry was afterwards put on the stand as a witness for the defendant. He testified that he and Hand were, and for five years past had been, deputies of Lidwell. He was asked as to handwriting to the first return; as to where and how it was obliterated; as to when the second return was appended; as to whether he ever made any return on the execution; as to the handwriting of the two returns. The questions were objected to, and the objections sustained. The defendant then offered to prove by the witness that he was deputy of Lidwell on October 7, 1875; that the execution was delivered to him, and that he made the return crossed out, and returned the execution with that return on it to the justice; that afterwards, without his knowledge or consent, some person made the cross lines over the face of that return; that the return thus crossed out was the true return; and that the return signed by Hand was indorsed on the execution and signed...