Clark v. Kinealy

• Decision Date: 12 December 1882
• Citation: 13 Mo.App. 104
• Parties: MARIA CLARK ET AL., Respondents, v. MICHAEL KINEALY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 104

MARIA CLARK ET AL., Respondents,

v.MICHAEL KINEALY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 12, 1882.

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

Affirmed.

M. KINEALY, pro se: The defendant can make the same defence against the plaintiffs that he could make against the bank in a suit by it against him.-- Weil v. Tyler, 38 Mo. 545. And can, in this action, set up all defences against the plaintiff which would have been good against the bank.-- Firebaugh v. Stone, 36 Mo. 111. The answer of the garnishee must stand until overcome by evidence.-- Holton v. Railroad Co., 50 Mo. 151.

DANIEL DILLON, for the respondents: A garnishee cannot avail himself of a set-off which he acquired after garnishment.--Drake on Attach., sect. 687; Reppy v. Reppy, 46 Mo. 571.

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

Plaintiff obtained judgment against defendant before a justice of the peace, as garnishee of the Butchers and Drovers' Bank. On trial anew in the circuit court, there was judgment against defendant.

In the circuit court a jury was waived, and the cause was submitted upon the following agreed statement of facts:--

“Plaintiff, on the 25th day of October, 1880, duly obtained judgment against the Butchers & Drovers' Bank, a corporation, before P. J. Taaffe, a justice of the peace in the city of St. Louis, for $96.35 debt, and costs which amounted to $19, and on said 25th day of October, 1880, said justice issued an execution on said judgment for said debt and costs in favor of plaintiffs and against said bank, and under and by virtue of said execution, by direction of plaintiffs, said Michael Kinealy was, on the 24th day of November, 1880, duly summoned and served as garnishee. At the time said Kinealy was summoned and served as garnishee as aforesaid he was indebted to said bank in a sum equal to said judgment and costs; that after said Kinealy was so summoned as garnishee he became the owner of the ‘scrip’ issued by said bank to an amount which at its face value equalled said judgment and costs, which he tendered to plaintiff in discharge of his liability as garnishee, and which at the trial of this cause before the justice he tendered to plaintiffs, together with the costs at the time of said trial, which plaintiffs refused to accept; and said Kinealy still continues said tender. Said ‘scrip’ was in form as follows:--

‘Exhibit A.”

State of Missouri.

No. 991.

$5.

This is to certify that the Butchers & Drovers' Bank of St. Louis is indebted to the bearer in the sum of five dollars, payable on or before August 1, 1880. This certificate has the security of the assets of said bank, amounting to $750,000, and is further secured by property conveyed to trustee for securing its payment by E. B. Hudson, M. F. Smith, and M. C. Chambers, of the value of $250,000, and is receivable for all debts due to the Butchers and Drovers' Bank. Issue limited to $650,000.

[Signed]

B. MAZIERE CHAMBERS, Pres't.

J. DESLOGE, Teller.'

The cause of action upon which plaintiffs secured their said judgment against said bank was based on some of said scrip which said bank had given to plaintiffs for an equal amount of money which plaintiffs had on deposit with said bank when it failed and closed its doors. Said bank was entirely insolvent when said Kinealy became the owner of the said scrip, which he tendered to plaintiffs, and said scrip was not worth in the market over ten cents on the dollar.

It is further agreed that any facts appearing in the transcript of the said justice in this case, or in the papers transmitted by him to this court and not inconsistent with the facts hereby agreed to, may be considered by the court in rendering a judgment in this case; and the deposit of said scrip by said Kinealy in court during the pendency of this trial has been and is waived.”

Whilst the garnishee is allowed to retain in his hands, notwithstanding the garnishment, of the funds of the debtor, an amount equal to all sums of which he might avail himself by way...