Coppersmith v. Mechanics-American National Bank of St. Louis
| Decision Date | 06 February 1923 |
| Parties | H. HOFFMAN & MORRIS COPPERSMITH, Doing Business as H. HOFFMAN & CO., Respondents, v. MECHANICS-AMERICAN NATIONAL BANK of ST. LOUIS, a Corporation, Garnishee, Appellant, M. FEUER & J. SPIEGEL, Doing Business as FEUER & SPIEGEL, Defendants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Thomas D. Cannon for appellant.
(1) The garnishee Mechanics-American National Bank of St. Louis was the agent of the Illinois National Bank of Springfield Ills., payee in the draft; said garnishee was and is accountable only to the Illinois National Bank; there was no privity of contract or interest between the garnishee and Feuer & Spiegel, defendants in the attachment; said garnishee was not entrusted with any property or money by Feuer & Spiegel; garnishee owed Feuer & Spiegel nothing which could be enforced at law; attachment and garnishment are legal remedies only; the garnishee's instruction in the nature of a demurrer to the evidence at the close of the case should have been given. Atwood v. Hall, 17 Mo.App. 81; McCord v. Beetles (Disbrow), 58 Mo.App. 384, 386; Provenshere v. Reifuss, 62 Mo.App. 51; Hendrickson v. Trenton National Bank, 81 Mo.App 335, 336; Peoples Savings Bank v. Hoppe, 132 Mo.App. 449; Wheeles v. Groc. Co., 140 Mo.App. 591; Brewing Co. v. Railroad, 145 Mo.App. 32; Typewriter Co. v. Cash Reg. Co., 156 Mo.App. 106; Lackland v. Garesche, 56 Mo. 267; Sheedy v. Second National Bank, 62 Mo. 17; State ex rel. v. Blair, 238 Mo. 154. (2) The demurrer to the evidence at the close of the plaintiff's case and all of the evidence should have been given; the circuit court was without jurisdiction to enter judgment in the cause against garnishee when it affirmatively appeared that judgment had not been entered in the attachment suit and that the garnishee was a national bank. Sec. 5242, R. S. 1878; Williams, Jur. and Practice of F. Courts, page 63 (chap, 3, section 15). (3) At the close of the evidence, it was the duty of the circuit court to direct a verdict in favor of the garnishee; the circuit court was without jurisdiction to enter judgment against the garnishee, when there was no judgment against the defendants in the attachment. It affirmatively appeared that no judgment was entered against the defendants Feuer & Spiegel in the attachment suit. Simmons v. Railroad, 19 Mo.App. 542; Miller v. Anderson, 19 Mo.App. 71; Johnson Machy. Co. v. Watson, 57 Mo.App. 629; Hauptmann v. Whittle, 85 Mo.App. 188; Typewriter Co. v. Cash Register Co., 156 Mo.App. 107-109; Chicago Record Herald Co. v. Bryan, 195 Mo. 590; Section 1862, R. S. 1919. (4) In the case at bar the denial of the garnishee's answer, states no cause of action against the garnishee; the garnishee's demurrer to the evidence should have been sustained. Bambrick v. Bambrick Bros., etc., 152 Mo.App. 61; Taylor v. Dollins, 205 Mo.App. 246. (5) The proceedings by garnishment is essentially legal: It is not equitable and no power exists in the circuit court to invoke equitable interference or to compel a settlement or adjustment of accounts between other parties; the Illinois National Bank, payee of the draft in question, was not a party to the proceeding, yet it held the legal title to the proceeds of the draft in the hands of the garnishee. Garnishee's demurrer to the evidence should have been sustained. Atwood v. Hale, 17 Mo.App. 88; Lackland v. Garesche, 56 Mo. 270; Provenschere v. Reifus, 62 Mo.App. 53; Mercantile Co. v. Beetles, 58 Mo.App. 389; Bank v. Barnett, 98 Mo.App. 479; Chapman v. Yancy, 173 Mo.App. 145; Cochrane et al. v. First State Bank, 201 S.W. 572; Section 1848, R. S. 1919. (6) When the Mechanics-American National Bank, garnishee, collected the proceeds of the draft for $ 887.27 and remitted therefor, the legal title to that fund was in the Illinois National Bank of Springfield, the payee and indorser. (a) At the time the draft was paid by H. Hoffman & Co., respondents and drawee of the said draft, by paying it, admitted the existence of the Illinois National Bank, its capacity, and right to indorse the draft. Section 848, R. S. 1919; Bank v. Bank, 148 Mo.App. 1, (b) The draft was a foreign Bill of Exchange and as such clothed with all the rights and privileges of such an instrument. Section 915, R. S. 1919. (7) Judgment was entered in the case at bar for $ 887.27 against the garnishee, notwithstanding the amount sworn to in the attachment was but $ 694.29. This judgment is clearly erroneous and should be set aside. The circuit court ignored the direct command of the statute requiring the court to order the garnishee to pay to the sheriff as much of the fund, found to be in its hands belonging to the defendant, as will satisfy the plaintiffs' demand and stand discharged. Secs. 1852, 1862, R. S. 1919. (8) Instruction No. 1 asked by the respondents and given by the court is erroneous. Van Zandt v. Grocery Co., 196 Mo.App. 640; Section 1847, R. S. 1919; Albritton v. Kansas City, 192 Mo.App. 579; Rissmiller v. St. Louis & H. Ry. Co, 187 S.W. 573. (9) Instruction No. 2, asked by the plaintiffs and given by the court is erroneous. R. S. 1919, sec. 1862; (Cases cited under point 3). (10). The court erred in permitting counsel for the respondents, over the objections of the garnishee, to go beyond the limit of legitimate argument, in his closing argument to the jury, wherein said counsel went outside of the evidence in the case and interlarded his arguments with statements of alleged facts not in evidence and in no way relevant to the issues, but mere gossip and innuendo, for the purpose of prejudicing the jury against the garnishee in order to secure a verdict. Williams v. Columbia Taxi Cab Co., 241 S.W. 970. (11) The court erred in failing and refusing to reprimand counsel for the respondents because said counsel for respondents went outside of the evidence in the case, in his closing argument to the jury, by interlarding his argument with alleged facts and gossip not in evidence, for the purpose of creating a prejudice against the garnishee. Williams v. Columbia Taxi Cab Co., 241 S.W. 970. (12) By paying to the garnishee the sum of $ 887.27, the amount due upon the draft in which they were drawees, Hoffman & Co., respondents, could not make the garnishee, Mechanics-American National Bank, without the consent of said garnishee, the debtor of Feuer & Spiegel, and thereby render the garnishee subject to garnishment, under the facts disclosed by the evidence in this case. Scales v. Southern Hotel, etc., 37 Mo. 525; Section 1848, R. S. 1919. (13) There was no privity of contract between Feuer & Spiegel and the Mechanics-American National Bank, garnishee, and said garnishee was not subject to garnishment, when service of process was had upon said bank. The circuit court should have directed a verdict in favor of the garnishee at the close of the evidence. Section 5242, R. S. 1878; Secs. 848, 915, 925, 1848, R. S. 1919. (14) The court erred in admitting in evidence certain sheets, known as yellow sheets, and white sheets, and the testimony of the bank clerk, produced as a witness by the plaintiffs relating thereto, wherein said bank clerk, over the objections of the garnishee testified that the "white" sheets were used in forwarding items that the Illinois National Bank had advanced money upon and the "yellow" sheets were used in forwarding items upon which the Illinois National Bank had not advanced money. (15) The court erred in admitting in evidence copies of correspondence, alleged to have passed between the Illinois National Bank, and the garnishee, without identification, and without accounting for the originals, and without notice to produce the originals, and without pleading the facts upon which it was claimed said letters or copies were admissible in evidence. Said papers and the evidence of the bank clerk produced by the plaintiffs, were not competent for any purpose in the trial of the cause, and were very prejudicial to the garnishee. (16) The court erred in admitting in evidence exhibits which purported to be "copies" of alleged letters and papers, the original of which could easily have been produced if they existed, or otherwise accounted for, if at all relevant to the issues in the case.
Care Dubinsky and Aug. Walz for respondents.
--Plaintiffs instituted an attachment suit against defendants, in the circuit court of the city of St. Louis, on June 3, 1919, on which date a garnishment was issued and served upon the Mechanics-American National Bank of St. Louis, a corporation organized and doing business under the laws of the United States. The garnishment was ancillary to the attachment suit. Interrogatories were filed by plaintiffs, to which garnishee answered that it neither owed the defendants, Feuer & Spiegel, anything, nor had in its possession any of their property, and asked for an allowance for attorney's fees and expenses. Plaintiffs' denial of garnishee's answer, which is the first pleading proper in a garnishment proceeding, denied that at the time of the service of the garnishment upon the garnishee said garnishee did not have in its control and possession money belonging to the defendants; and further denied that said garnishee did not owe or have money in its possession belonging to the defendants; and ...
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