Cavanaugh v. Dyer

• Citation: 215 S.W. 481
• Decision Date: 04 November 1919
• Docket Number: No. 15431.,15431.
• Parties: CAVANAUGH v. DYER et al. (MASON, Interpleader).
• Court: Court of Appeal of Missouri (US)

215 S.W. 481

CAVANAUGH v. DYER et al. (MASON, Interpleader).

No. 15431.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Rehearing Denied November 20, 1919.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge. "Not to be officially published."

Action by John E. Cavanaugh against B. A. Dyer and the Firemen's Insurance Company of Newark, N. J., garnishee, wherein A. E. Mason interpleaded. From a judgment dismissing plaintiff's suit and awarding the fund to the interpleading party and a denial of a new trial, plaintiff appeals.. Affirmed.

John B. Denvir, of St. Louis, for appellant. W. J. Blesse and William Kohn, both of St. Louis, for respondent.

BIGGS, C.

This is a controversy over the proceeds of a fire insurance policy issued to

B. A. and C. A. Dyer, as their interests may appear, by the Firemen's Insurance Company of Newark, N. J. Appellant was an execution creditor of defendant B. A. Dyer. In aid of an execution, the insurance company was summoned as garnishee; a loss having occurred on December 9, 1914. The garnishment writ was served on the insurance company December 26, 1914. In due time the insurance company answered and by proper order were allowed to pay the fund, less an allowance, into court. The garnishee's answer set up the claim of appellant, Cavanaugh, to the proceeds of the policy by virtue of said judgment and execution, and also the claim of respondent, Miss A. E. Mason, to said proceeds by virtue of an assignment from the insured B. A. and C. A. Dyer. Thereupon the court ordered said Cavanaugh and Mason to file interpleas.

Respondent Mason's interplea, after setting up the issuance of the policy and the loss thereunder, claimed the proceeds by reason of assignments executed by B. A. and C. A. Dyer filed with the insurance company on December 11 and December 14, 1914, which assignments were alleged to be valid and made for a valuable consideration and before the garnishment writ was served on the insurance company.

Appellant, Cavanaugh, by interplea, claimed the proceeds of the policy by reason of his judgment and execution, and alleged that the pretended assignments were not made in good faith or for value, but for the purpose of hindering, delaying, and defrauding the creditors of B. A. and C. A. Dyer, and for the purpose of defeating the garnishment. It is further alleged that the amount due under the policy was garnished before the pretended assignments were filed with the insurance company.

Respondent, Mason, denied generally the allegations of appellant's interplea.

The issues were tried before the court without the aid of a jury. No instructions or declarations of law were given or asked.

Upon submission of the cause the trial court dismissed appellant Cavanaugh's interplea and decreed that the fund in court be paid to respondent, Miss Mason.

After the filing in due time and the overruling of a motion for new trial, the case was brought here.

We are met at the threshold with respondent's contention that there is nothing here for us to review. This, on account of the fact that the appellant has failed to clearly specify the errors upon which he relies for reversal as required by rule 18 (169 S. W. xvii) of this court.

Appellant's formal assignment of errors merely specifies that the lower court erred in rendering judgment for respondent instead of for appellant, and that error was committed in the admission of evidence, without specifying what the evidence was or its character, and, lastly, that the court erred in overruling appellant's motion for a new trial.

It is well settled that these are not valid assignments of error and present nothing for review in an appellate court. Greensfelder v. Witte Hardware Co., 189 Mo. App. 576, loc. cit. 584, 175 S. W. 275.

We are not inclined to a narrow view of the rule requirement, and, if we are able to glean from a reading of appellant's points and authorities and argument the grounds upon which he relies for reversal, we will consider this a substantial compliance with the rule. Such is our conclusion here, and we rule this point against respondent.

The question for decision is whether, under the evidence, the assignments of the proceeds of the policy by B. A. and C. A. Dyer to respondent Mason were valid assignments, made for value, and whether notice of such assignments was given to the insurance company before the service of the writ of garnishment. These are questions of fact. The appellant carried the burden of showing the fraudulent character of the assignments. The assignment that is material to the inquiry is one dated December 14, 1914, signed by B. A. Dyer. This paper is also signed C. A. Dyer, by B. C. Dyer, attorney in fact. To the assignment is attached a power of attorney from C. A. Dyer to B. A. Dyer giving him authority to collect, sign for, and release the insurance company from all claims that may become due under the policy.

Appellant contends that this power of attorney is not sufficient to authorize an assignment of C. A. Dyer's interest in the claim under the policy. Appellant has no right to complain of such matter, as the record discloses that his judgment is against B. A. Dyer alone, and he has no right to subject C. A. Dyer's interest to the payment of his claim.

The record shows that this assignment was executed a few days after the fire; that on the same day it was filed with the St. Louis agents of the insurance company. Witness Harding, adjuster for B. A. Dyer, testified positively that he so filed it on that day. While witness Caver, employed by the St. Louis agents of the company, does not remember the exact date that Harding filed the assignment with him, it is plain from his testimony that it was filed before December 26th, the day of the service of the garnishment on the insurance company, inasmuch as the assignment was attached by Caver to the proofs of loss and sent to Western Adjustment Company, who were adjusting the loss for the insurance company. Afterwards when the claim was investigated by the Western Adjustment Company, the papers were returned to Caver, who sent them to the Western Department of the Insurance Company at Chicago, where they arrived on December 28, 1914. It makes no difference when they reached the Chicago office. Legal notice of the assignment was given to the agents of the company at St. Louis before the garnishment was served, and under the evidence the lower court was clearly warranted in so finding.

As to the bona fides of the assignment, and whether it bore a valuable consideration, the facts are these:

Miss A. E. Mason, the respondent, was a distant relative and also a sister-in-law of B. A. Dyer, and had resided in his household for a number of years. The policy of insurance covered property not only owned by the assured, but also any member of assured's family, household, servants, or visitors. Respondent Mason testified that she had property that was destroyed by the fire which she valued at $600. Miss Mason further testified that B. A. Dyer had transferred to her the proceeds of this policy, and that this took place about two days after the fire, and was done in order to secure her and pay her the money she had loaned to B. A. Dyer; that she had loaned...