Davis v. Knapp

• Decision Date: 31 July 1844
• Citation: 8 Mo. 657
• Court: Missouri Supreme Court
• Parties: DAVIS, GARNISHEE OF FLEMING, v. KNAPP & SHEA.

8 Mo. 657

DAVIS, GARNISHEE OF FLEMING,

v.KNAPP & SHEA.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

MCPHERSON for Appellant.

HICKMAN, for Appellees. No exception was taken at the time to the opinion of the court, in overruling the motion to dismiss, because the jury fee had not been paid, and the grounds upon which such motion was overruled has not been preserved; and if the Circuit Court erred in overruling said motion, and exceptions had been taken, the defendant should there have rested his case. Rev. Code, p. 464, § 20; 7 Mo. R. 250, 285; 4 Mo. R. 445; 8 Mo. R. 56, 505.

The evidence shows that defendant, Davis, was indebted to Fleming between the 26th November, 1842 (the time of the execution of the summons on Davis), and the 26th January, 1843, when he (Davis) filed his answer. He is therefore responsible to the plaintiffs for any amount he owed or paid to Fleming between these days, until plaintiff's judgment against Fleming was satisfied. Sergeant on Attachment, 10 3. The issue in this case the indebtedness of Davis to Fleming, and the jury having found for the plaintiffs, upon the evidence, this court will not reverse unless such finding was clearly against the weight of evidence. 6 Mo. R. 61

TOMPKINS, J.

Knapp & Shea commenced an action before a justice of the peace of St. Louis county against John Fleming. Judgment was there obtained for sixty-one dollars, and execution was issued against him; but no property being found, John Davis was summoned as garnishee. Judgment was given for Knapp & Shea for seventy-five cents, against the garnishee, Davis. Knapp & Shea appealed to the Circuit Court, where they obtained judgment against Davis for the amount of their judgment first obtained against Fleming. From this judgment of the Circuit Court, Davis appeals to this court. The answer of the garnishee, Davis, to the interrogatories filed before the justice, being decided to be insufficient by the Circuit Court, he again answered, that, “at the time of the service of the notice, he owed the defendant (Fleming) seventy-five cents, and no more, for labor done, which amount he had before tendered to the court, and asked to be discharged; and further stated, that he had not owed the defendant any other or greater sum since that time; that the defendant, Fleming, continued to labor for him after the notice was served, but required his wages weekly, in advance, which he had paid him all the time, in order to secure his services, and had not, at any time since the service of the notice, nor did he yet, owe the said defendant, Fleming, any other or further sum whatsoever,” &c. It appears, from the bill of exceptions, that the defendant moved the court to dismiss the case, because no certificate of the payment of the jury fees had been filed. This motion was overruled, and exceptions taken to the decision of the court.

On the part of the plaintiffs, Knapp & Shea, evidence was given, that Fleming, the defendant, was a hat finisher, and as such had been in the service of the garnishee, Davis, about the last of October, 1842, and continued in his service until the spring or summer; that Fleming's work was worth eight or ten dollars per week; that on the 26th day of November, 1842, Davis came into the shop of the plaintiffs, where the witness was at work, and while there, Shea inquired of Davis how he had answered, and that Davis replied, that he had answered that he owed Fleming seventy-five cents; that he (Davis) paid Fleming his wages every Saturday; that [if] they had garnisheed him every week, they could have got their money.

Another witness, on the part of the plaintiffs, stated, that he was an apprentice of the plaintiffs; that he knew Fleming, and knew that he worked for said Davis at the time testified to by the last witness, and that his work was the finishing of hats; that he did not know the worth of Fleming's labor; that he was present at the conversation between Mr. Shea and Mr. Davis--heard Davis say that he paid Fleming every Saturday; that he (Davis) had answered that he owed Fleming seventy-five cents, and that was all he (Davis) owed said Fleming. No other evidence was given.

The defendant then asked the following instructions: 1st. That the plaintiffs having denied the truth of the defendant's answer, it is necessary that they should show, by their evidence, that it is untrue; and if no such evidence is offered, they must find for the defendant. 4th. That if the defendant, Davis, paid Fleming for his labor weekly, in advance, he is not liable to the plaintiffs on account of such labor. 5th. That the mere fact of Fleming [being] in the employment of the defendant, is not sufficient to establish an indebtedness, as against the answer of the said defendant, Davis, without showing some other facts going to show such indebtedness.

The second and third are passed over, because the court gave them. The court refused the first, fourth and fifth instructions asked by the defendant, and gave the...