Darby v. Charless

• Decision Date: 31 October 1850
• Parties: JOHN F. DARBY, GARNISHEE OF WM. T. SMITH, v. JOSEPH CHARLESS.
• Court: Missouri Supreme Court

13 Mo. 600

JOHN F. DARBY, GARNISHEE OF WM. T. SMITH,

v.JOSEPH CHARLESS.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

On the 25th August, 1847, the appellee, Charless, commenced an action of assumpsit against William T. Smith, surviving partner of Colburn & Smith, in the St. Louis Court of Common Pleas, by process of attachment returnable to the succeeding term for that year. The affidavit for the attachment states that the defendant was indebted unto the plaintiff in the sum of $882 70, with interest at the rate of ten per cent. from the 15th of March, 1847. The appellant, Darby, was summoned as garnishee, on the 21st of August, 1847, and allegations and interrogatories were filed on the 27th of August. On the 26th of November, 1847, Darby filed his answer, denying that he owed defendant anything, or that he had in his possession or control any money or property of any kind belonging to defendant. But stating that on the 26th of April, 1847, he administered as public administrator of St. Louis county upon the estate of Norris Colburn. That afterwards, and on the 12th day of June of that year, the Probate Court of said county, having full jurisdiction in the premises, upon proper grounds being laid therefor by affidavit, issued a citation against John Lewis of Independence, Mo., for embezzling and unlawfully detaining certain checks on the Bank of the State of Missouri, belonging to the deceased. That the Probate Court, after investigating the matter, adjudged and ordered said Lewis to deliver said checks as the property of said deceased, Colburn, to said Darby, as his administrator; and accordingly that Lewis delivered over said checks as the property of said Colburn to Darby, as his administrator, who received them as a part of the estate of his intestate, the said Colburn. That the checks were payable to bearer or to order, and indorsed in blank, and amounted to $2,293 09. They were scheduled in detail in his answer and were drawn by D. Spalding, B. Walker, Wm. D. M'Kissack and A. F. Garrison, much the largest portion by S., a part by W., one by M'K., and one by Garrison.

At the February term, A. D. 1848, the Common Pleas ordered that the defendant be notified that an action of assumpsit had been brought against him for $882 70, that his property had been attached, and that unless he appeared at the next term of the court, to be held at St. Louis on the 3rd Monday of September next, and plead, &c., &c. Afterwards at said September term, proof and publication of the order was made, and judgment by default rendered thereon against the defendant and damages assessed by the court on the note sued on, and judgment entered up for $983 58, and no rate of interest specified in said judgment. On the 23rd of February, 1848, the plaintiff filed what he styled a denial of the answer of the garnishee, in which he stated that the garnishee when summoned as such had in his possession money and effects as set forth in plaintiff's allegations and interrogatories, and that the checks on the Bank of Missouri enumerated in the answer were the property of the defendant, Smith.

On the 2nd of October, 1849, a trial was had between the plaintiff and the garnishee, Darby, and the jury found that the allegations affirmed in the denial of the garnishee's answer were true as therein stated. And thereupon the court rendered judgment against the garnishee, Darby, for $1,045 77 and costs of plaintiff in the whole of the proceedings as well against the defendant as against the garnishee.

On the trial the plaintiff proved the partnership of Colburn & Smith, and that they were traders doing business in Santa Fe, and that Colburn was carrying on no business except in company with Smith. That in March, 1847, Colburn being about to leave Santa Fe for the United States, he took with him as a member of said firm about nine or twelve thousand dollars of gold dust,...