Dodge v. Knapp

• Decision Date: 02 May 1905
• Citation: 87 S.W. 47,112 Mo. App. 513
• Parties: DODGE et al. v. KNAPP.
• Court: Missouri Court of Appeals

87 S.W. 47

112 Mo. App. 513

DODGE et al. v. KNAPP.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

GARNISHMENT—SERVICE — APPEARANCE — OBJECTIONS—WAIVER—LIEN—FRAUDULENT CONVEYANCES — EVIDENCE—JUDGMENTS — CONCLUSIVENESS — INSTRUCTIONS — APPEAL — THEORY OF CAUSE.

1. Under Rev. St. 1899, § 3436, providing that notice of garnishment, properly served, shall have the effect of attaching all personal property, etc., of the defendant in the garnishee's possession or charge or under his control at the time of the service of garnishment, etc., the service of a garnishment does not create a specific lien in favor of the plaintiff on money or property of the defendant in the hands of the garnishee, but only creates such a lien as entitles the plaintiff to hold the garnishee personally liable for such money or property or its value.

2. Under Rev. St. 1899, § 3451, providing that where the denial of a garnishee's answer is replied to the issues raised by the denial and reply are the sole issues to be tried, the sufficiency of the service of garnishment cannot be raised by the garnishee's answer, but only by a plea

in abatement or motion to quash the officer's return of service.

3. A garnishee's answer alleging that she, having been summoned as garnishee, made answer to the interrogatories of plaintiffs as follows, etc., constituted a general appearance, and an admission that she had been summoned in a lawful manner and for a lawful purpose.

4. Where, in a garnishment proceeding, the garnishee's denial of indebtedness was put in issue, and plaintiffs claimed that the garnishee held money of the principal debtor for the purpose of concealing the same and hindering and delaying his creditors, a former judgment in an equity suit by plaintiffs against the garnishee and others, to set aside certain fraudulent transfers to the garnishee, in which it was determined that such transfers were fraudulent and made to defraud plaintiffs, was admissible in the garnishment proceedings on the issue of the garnishee's intent.

5. Such judgment was conclusive, as against the garnishee, that the conveyances attacked in such proceedings were made to defraud plaintiffs.

6. Where a judgment was revived against the administratrix of decedent on stipulations of the parties, which necessarily assumed and admitted that letters of administration had been granted, any error in the introduction of such letters in evidence in garnishment proceedings based on such judgment was immaterial.

7. Where instructions requested by appellant were based on the same theory as that adopted by respondents' instructions, appellant could not assert that respondents' instructions submitted the case on an erroneous theory.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Ernest C. Dodge and others against Mrs. Anna Knapp, garnishee of Ralph Hammond Pybus, alias Ralph Hammond Knapp. From a judgment for plaintiffs against the garnishee, she appeals. Affirmed.

It appears from the evidence that Ralph Hammond Pybus, alias Ralph Hammond Knapp, inherited an estate of about $8,000 from his father, who died in England, and employed the respondents, a firm of attorneys at law, in the city of St. Louis, to recover the estate for him. After a prolonged investigation by respondents, in 1900, Pybus went to England for the purpose of collecting his estate, and collected about $8,000, and sent his mother, the appellant, a draft for $5,400 or $5,500, which she appropriated to her own use. Pybus failed to pay respondents for their services, and they instituted suit against him in the circuit court of the city of St. Louis, and on October 31, 1902, recovered a judgment against him for $2,017. As is shown by the record, execution was issued and returned by the sheriff nulla bona. The return shows that, by order of plaintiffs in the execution, process of garnishment was served on appellant, Anna Knapp. On this return the suit of E. C. Dodge and T. E. Mulvihill against Anna Knapp, garnishee of Ralph Hammond Pybus, alias Ralph Hammond Knapp, was entered upon the docket of the circuit court and interrogatories in the usual form were exhibited to the garnishee. Her answer to each interrogatory was, "No."

Respondents filed a denial to the garnishee's answer, charging that said garnishee, Mrs. Anna Knapp, was indebted to the defendant in the execution, Ralph Hammond Knapp, in the sum of $5,000. This denial further charged that the defendant Knapp had been indebted to respondents since about October, 1900, and that this indebtedness was well known to the garnishee, his mother. That, through the professional services of the respondents, defendant, on or about May, 1902, came into the possession of a large estate, namely, $8,000, and, with the fraudulent intent of secreting his property and defeating the respondents' just claim, he transferred $5,000 to his mother without consideration, and that his mother had full knowledge of the purpose for which the transfer was made and participated in the fraudulent design of her son. The prayer was for judgment against the garnishee for the amount of their judgment previously recovered.

The garnishee filed a reply to this denial, alleging, in substance, that the different properties transferred to her by Pybus, her son, were transferred in good faith, for a valuable consideration, and without any fraudulent purpose on either his or her part.

The issues thus made were tried to a jury, who found that upon the 19th day of February, 1903 (the date of service of the garnishment), the garnishee had in her hands, belonging to Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, the sum of $3,000, and a judgment was rendered on the verdict requiring the garnishee to pay to the sheriff $1,818.42 (balance due on the judgment) on or before June 18, 1904. After taking the usual steps to preserve her exceptions to the rulings of the court on the trial, the garnishee appealed to this court.

The appellant is the mother of Ralph Hammond Pybus, who was the oldest of her three children by Pybus. It appears that after the death of her husband in England appellant came to the city of St. Louis with her children, and married her present husband, Mr. Knapp, whose yearly income, she testified, was about $10,000. She testified that after her marriage to Mr. Knapp her three children lived with them as members of their family and were well treated and provided for by Mr. Knapp. She also testified that Ralph Hammond was her oldest child, and she knew, for that reason, he would inherit all of his father's estate in England, and to do justice to her other two children, who could not share in the inheritance, she made a contract with her son Ralph, when he was 14 years of age, to the effect that she should furnish the money to educate him (which she says she was not able to do for her other two children), he agreeing that when he came into his inheritance he would reimburse her for the expenses of his education; that when he attained his majority he went to England to collect his estate, and she gave him $2,000 to enable him to make the trip, and that this sum, and what she had expended for his education, books, etc., during his minority, amounted to about $6,500. Appellant also testified that while her son was in England he sent her a draft for $5,400 or $5,500 to be applied on this indebtedness, and in June, 1902, she deposited this draft to her own credit in the Mississippi Valley Trust Company, and subsequently drew the whole of it and used it for her own purposes. This part of her evidence was corroborated by the evidence of Georgia Knapp, her daughter. On cross-examination appellant stated that after the commencement of the garnishment proceedings she was advised by her son Ralph Hammond and her other children to draw the money from the trust company; that it would be best to have it at home.

C. E. Ramlose, a shoe manufacturer, testified on behalf of respondents that he was the father of Miss Clara Ramlose, who married Ralph Hammond Knapp on November 24, 1903, and that they lived at his house after the marriage; that he knew Mrs. Anna Knapp, the garnishee, and Miss Georgia Knapp, her daughter. "Q. Did you ever have any conversation with Mrs. Anna Knapp about this Dodge and Mulvihill litigation she was having? A. Yes, sir; I had some. Q. What did she say to you about it? A. Why, she told me that she and her daughter held Ralph's money; that they could beat Dodge and Mulvihill out of it, and they only held it for the benefit of Ralph, and they had held it to beat Dodge and Mulvihill out of the money. Q. For the purpose of doing that? A. Yes, sir; she said so repeatedly—several times. Q. Was the question of defending this claim of Dodge and Mulvihill discussed between you and Mrs. Anna Knapp? A. Yes, sir. Q. What did she say in regard to that? A. She said Dodge and Mulvihill couldn't collect anything, because Mrs. Knapp would consume it for board money, and Mrs. Knapp would hold the money and had held the money. * * * Q. Did she say anything about the reason why no defense was made to the original suit brought by Dodge and Mulvihill? A. Yes, sir. Q. What was the reason. A. She said this had been put away to beat Dodge and Mulvihill. By holding the money, they would not employ an attorney to fight the other case. Q. They would hold the money? A. Yes, sir." Witness also testified that after Ralph's death Mrs. Knapp, the garnishee, told him that she wished she had said that Ralph had lost this money in gambling. "Q. What did she say after he was dead? A. After he was dead she said she might as well say that Knapp had gambled all his money up as to say that he paid it to her."

Pending this proceeding Ralph Hammond Pybus died, and his wife, Clara P. Knapp, administered on his estate. After her appointment as administratrix, to wit, April 19, 1904, the following order was entered in the circuit court by consent of all the parties: "Now,...