Farrar v. American Express Co.

• Decision Date: 04 November 1919
• Docket Number: No. 15135.,15135.
• Citation: 219 S.W. 989
• Parties: FARRAR v. AMERICAN EXPRESS CO. et al.
• Court: Missouri Court of Appeals

219 S.W. 989

FARRAR v. AMERICAN EXPRESS CO. et al.

No. 15135.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Rehearing Denied March 30, 1920.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Eliza H. Farrar against the American Express Company and others, in which the American Express Company was also attached as garnishee for the nonresident defendants. From a judgment of the circuit court on appeal from a justice of the peace against one of the nonresident defendants and against the American Express Company as garnishee, but in favor of the other nonresident defendant and of the American Express Company as defendant, plaintiff and garnishee separately appeal. Affirmed.

Watts, Gentry & Lee and John F. Gillespie, all of St. Louis, for appellants.

Christy M. Farrar, of St. Louis, for respondents.

ALLEN, J.

This is an action, originally instituted before a justice of the peace, against the American Express Company, a corporation doing business as a common carrier, North German Lloyd, a steamship corporation, and A. Lemon and G. Placci, comprising a copartnership doing a "banking, forwarding, and storage business" in Florence, Italy, under the name of Trench, Lemon & Co.

In her statement filed before the justice of the peace plaintiff alleged that in Florence, Italy, she delivered a trunk containing certain articles to the defendants French, Lemon & Co. (whom she alleged to be agents of the defendant American Express Company) to be stored and kept by them; that the trunk was so stored for a period of about six months, when plaintiff ordered that it be sent to the city of St. Louis; that the defendants French, Lemon & Co., North German Lloyd, and the American Express Company carried the trunk at different times until it reached its destination in the city of St. Louis, where it was delivered to the plaintiff by defendant American Express Company; that when the trunk was so delivered to plaintiff some of the articles that were contained therein when it was placed in the hands of French, Lemon & Co. were missing and others broken, to plaintiff's damage in the sum of $500, for which sum judgment was prayed.

French, Lemon & Co. having no office or agent in the United States, no personal service was had upon them, but plaintiff sued out a writ of attachment against said defendants and summoned the defendant American Express Company as their garnishee. Neither was personal service had upon the North German Lloyd, a foreign corporation, but plaintiff proceeded against that defendant by way of attachment and summoned the Central National Bank of the city of St. Louis as its garnishee.

It appears that in the justice court plaintiff obtained a default judgment against French, Lemon & Co. for $558.83, being $499 damages and $59.88 interest; and plaintiff also had judgment against the American Express Company as said garnishee. In the main case judgment was rendered in favor of the American Express Company on the merits; and judgment was likewise rendered in favor of the North German Lloyd on the ground that the court had acquired no jurisdiction over it, and in favor of the Central National Bank as garnishee of that defendant. Thereupon defendant American Express Company appealed to the circuit court from the judgment against it as garnishee, and plaintiff appealed to said court from the judgment against her in favor of the American Express Company on the merits, as well as the judgment in favor of the defendant North German Lloyd, and in favor of the Central National Bank, garnishee.

Upon trial of the main case de novo in the circuit court, before the court and a jury, plaintiff suffered a nonsuit as to the defendant American Express Company. The court directed a verdict in favor of defendant North German Lloyd, and in favor of plaintiff and against French, Lemon & Co., leaving it to the jury to determine the amount of the damages. The jury returned a verdict for the North German Lloyd and for plaintiff against the defendants French, Lemon & Co. in the sum of $475. Thereupon plaintiff moved to set aside the nonsuit, and the verdict as to the defendant North German Lloyd, which motions were overruled.

Thereupon the issue made in the garnishment proceeding, wherein the American Express Company was summoned as garnishee of French, Lemon & Co., was tried before the court without a jury, a jury having been waived. The court found that the said garnishee was indebted to French, Lemon & Co. in the sum of $1,078.32, and ordered the garnishee to pay the amount of the judgment against French, Lemon & Co. to the sheriff within ten days. The garnishee thereupon filed a motion to set aside this order and for a new trial. This motion was overruled, and, the garnishee not having complied with the order requiring it to pay the sheriff the amount of the judgment in favor of plaintiff and against French, Lemon & Co., judgment was entered against said garnishee for the amount of said judgment, to wit, $475, together with interest from the date of the judgment, amounting to $10.10, making a total of $485.10. From this judgment the garnishee American Express Company, after unsuccessfully moving for a new trial, appealed to this court. Plaintiff likewise appealed to this court "as to all of the defendants and garnishees and as to all of the issues in the case."

Further reference will be made to the facts disclosed by the record in connection with the various questions to be disposed of in the course of the opinion.

As to the ruling below forcing plaintiff to a nonsuit as to the defendant American Express Company on the merits and that directing a verdict for the North German Lloyd, it appears from the brief of plaintiff's counsel that plaintiff, while questioning the correctness of these rulings, does not desire to obtain a reversal and a remanding of the cause for a new trial as to these defendants, if the garnishment against the American Express Company as garnishee of defendants French, Lemon & Co., be sustained. We shall therefore first consider the questions raised by the appeal of the American Express Company in the garnishment proceeding.

I. Upon the garnishee's appeal several questions are raised by its learned counsel. It is said in the first instance that, since no appeal was taken from the judgment of the justice of the peace in favor of plaintiff and against French, Lemon & Co., defendants in the main case, the circuit court was without jurisdiction to render its judgment against said defendants. In fact, counsel on both sides agree that, since no appeal was had from the judgment rendered by the justice of the peace against French, Lemon & Co., that judgment remained undisturbed and unaffected by the appeals taken to the circuit court, and that in the latter court no trial should have been had of the issues as between plaintiff and that defendant. And in this connection plaintiff urges here that, since the garnishment proceeding against the American' Express Company must be predicated upon the judgment of the justice of the peace against French, Lemon & Co., and not upon that of the circuit court against that defendant, the circuit court should have ordered the garnishee to pay the amount of the said judgment of the justice of the peace, to wit, $558.88, with interest, and, upon its failure to pay the same, judgment against the garnishee should have been entered in that amount—a matter which we shall consider later. The garnishee, however, contends that the judgment of the justice of the peace against French, Lemon & Co. was void, because of the fact that judgment was entered against the garnishee on the same day, without the making of an order upon the garnishee to pay the amount found to be due. In this connection authorities are cited involving garnishments in the circuit court which are controlled by the provisions of section 2432, Rev. Stat. 1909. The statutory provisions governing this matter in garnishments before a justice of the peace will be found in sections 7740, 7741, Rev. Stat. 1909. Section 7740 provides that, unless the garnishee discharge himself by paying or delivering over the money or property of the defendant found in his hands "to the constable forthwith, or as soon as may be," then the justice shall enter judgment against him for the value or amount in money so found. In view of this statute we could not say, upon the record before us, that the judgment of the justice of the peace against the garnishee was premature; but we do not regard that question as one of consequence here. So far as appears from this record, there is nothing to render void the judgment against French, Lemon & Co. entered by the justice of the peace. That judgment stands unappealed from and affords a sufficient basis for the judgment of the circuit court against this garnishee in the garnishment proceeding.

II. Learned counsel for the American Express Company, garnishee, urge that plaintiff's denial of the garnishee's answer filed before the justice of the peace did not "state facts sufficient to constitute a cause of action and raise a triable issue" in garnishment, in that it did not charge the garnishee with any indebtedness to French, Lemon & Co. and did not charge the garnishee with the possession of any specific property nor with the possession of any property in this state.

The amended answer of the garnishee to the interrogatories filed by plaintiff is as follows:

"Comes now the above-named garnishee, the American Express Company, and in answer to the first interrogatory states that at the time of the service of the garnishment it had not in its possession or under its control any property, moneys, goods, or effects of the defendants within the state of Missouri.

"In answer to the second interrogatory, garnishee states that at the time of the service of the garnishment it had on deposit in its office in the city of New York the sum of...