Chicago Herald Co. v. Bryan

• Decision Date: 31 January 1906
• Citation: 92 S.W. 906,195 Mo. 590
• Parties: CHICAGO HERALD CO. v. BRYAN. (BRYAN, garnishee).
• Court: Missouri Supreme Court

92 S.W. 906

195 Mo. 590

CHICAGO HERALD CO. v. BRYAN. (BRYAN, garnishee).

Supreme Court of Missouri. Division No. 2.

January 31, 1906.

1. APPEAL — GARNISHMENT — JUDGMENT AGAINST PRINCIPAL DEFENDANT—REVERSAL —EFFECT ON APPEAL BY GARNISHEE.

A judgment against a garnishee must be reversed on his appeal, where the judgment against the principal defendant has been reversed.

2. SAME—MATTERS NOT IN RECORD—EVIDENCE —JUDICIAL NOTICE—JUDICIAL RECORD.

The Supreme Court takes judicial notice of its own records.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by the Chicago Herald Company against William S. Bryan, with Nannie M. Bryan, garnishee. From a judgment in favor of plaintiff against the garnishee, she appeals. Reversed, and garnishee discharged.

S. T. G. Smith and Thos. S. Meng, for appellant. Selden P. Spencer, for respondent.

GANTT, J.

This is a proceeding by garnishment instituted by summoning Nannie M. Bryan as garnishee, on the execution on the judgment rendered in favor of the plaintiff against William S. Bryan in the circuit court of the city of St. Louis, on the 23d day of March, 1903, for $11,261.75. Interrogatories were filed by the plaintiff to the garnishee as to whether she was indebted to the defendant, or had any money, property, or effects of the defendant in her possession. Garnishee was also specifically asked as to whether she had, on or about October 7, 1902, received from the defendant approximately $10,967.40, and, if so, under what circumstances and for what purpose. The garnishee answered, denying specifically any indebtedness to the defendant or that she had any of his property in her possession. The answer stated that she had, on or about October 7,1902, received from the defendant the sum of $10,806.53 in cash, in payment of the indebtedness owing to her from the defendant. A denial of the garnishee's answer was filed, in which plaintiff alleged that on October 7, 1902, defendant was intrusted with certain negotiable promissory notes belonging to plaintiff, which defendant agreed to take up to the National Bank of Commerce, in the city of St. Louis, and have discounted and to return the proceeds to the N. D. Thompson Publishing Company; that defendant had the notes discounted at said bank and received the proceeds, amounting to $10,967.40, and appropriated the same to his own use; and that judgment for that amount together with interest and costs, had been rendered against defendant in favor of plaintiff in the circuit court of the city of St. Louis, to enforce which judgment this garnishment was issued. Plaintiff further alleged that defendant had admitted that he turned over the money to the garnishee, and claimed that it was turned over to her in payment of some indebtedness from him to her. It was further alleged that the garnishee had full knowledge that the money thus delivered to her by the defendant was not the property of said William S. Bryan, and that he had no title thereto. To this denial the garnishee filed a reply, denying each and every allegation therein contained. On the issues thus framed a trial was had on June 18, 1903, and a verdict was rendered in favor of the plaintiff against the garnishee for $10,800. On motion of the plaintiff, the garnishee was ordered to pay the money into court on or before June 22, 1903. Thereupon motions for new trial and in arrest of judgment were filed in due time, which were heard and overruled, and an appeal was granted to this court.

On the trial, over the objection of the garnishee, the plaintiff was permitted to show the facts set out in the principal case of Chicago Herald Company v. William S. Bryan (already determined at this term) 92 S. W. 902, and in addition thereto that the said W. S. Bryan, after discounting the notes, took the money which he received for the notes and placed same in a package, and took the package and turned it over to Mr W. N. McConkin. Several days thereafter the garnishee, Mrs. Bryan, called upon Mr. McConkin and received the package from him, and the money was then counted out and turned over to Mr. McConkin's firm as a loan. Afterwards it was returned to the garnishee in cash. There was evidence, also, on the part of the garnishee, in a deposition taken by the plaintiff, that this money was turned over to her by her husband as a credit for moneys that he owed her; that at that time...