Firebaugh v. Stone

• Decision Date: 31 July 1865
• Parties: C. B. FIREBAUGH AND JAMES BROWN, Plaintiffs in Error, v. ISRAEL STONE, GARNISHEE OF DYER & ROBERTSON, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 111

C. B. FIREBAUGH AND JAMES BROWN, Plaintiffs in Error,

v.ISRAEL STONE, GARNISHEE OF DYER & ROBERTSON, Defendant in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Callaway Circuit Court.

Hayden & Belch, for plaintiffs in error.

I. The court erred in allowing the defendant Stone to retain the money in his hands to be appropriated to the payment of debts owing by Dyer & Robertson to him. His answer admits a certain fund in his hands, acquired by him under a void assignment, consisting of money specially designated in the answer as United States legal tender notes, and other notes and accounts mostly worthless.

The attaching creditors, Firebaugh and Brown, from the moment the process of garnishment was served upon him, acquired a lien upon this fund. Stone does not occupy the position of a debtor to Dyer & Robertson, but he holds the money as bailee, and without any lien express or implied in his favor upon the fund. If he had as against Dyer and Robertson, supposing there had been no assignment by them, without their consent appropriated this fund to the payment of the debts due by them to him, they could have sued him in trover and conversion, and recovered the money.

This money was a fund in Stone's hands arising from the sale of the stock of goods. The property was placed in his hands for a designated purpose--the payment of certain debts in the assignment. The authority by which he held it was declared to be invalid, by declaring the assignment to be void. He now, while admitting that it only came to his hands for one purpose (to be distributed to the creditors under the assignment), insists that he has a right to retain and hold it for his own use, and the court allows him to appropriate it in that way.

The relationship of Stone to Dyer & Robertson, as regards this money, is not the relation of debtor and creditor, but that of bailor and bailee, and on no principle can he be allowed to retain it.

Our position then is, that Stone cannot in this proceeding, of his own option, convert himself into the capacity of debtor for this money, in order to let in his debts as set-off, and that he has neither a particular nor general lien on the fund, but none whatever, and stands (the assignment being invalid) as a naked bailee of the money, and has no lien for previous debts. (Drake on Attach., § 690; Wood v. Edgar, 13 Mo. 452; 18 Mo. 277; 19 Mo. 625; 34 Mo. 432.)

The law as applicable to factors, consignees, warehouse-men, &c., allowing them a lien for general balance of accounts, has no application to this case whatever; for Stone had no more right to a lien than any other creditor.

Ewing & Muir, for defendants in error.

Whatever claim the garnishee has against the defendant, and of which he could avail himself in an action between them, will be equally available to him in the garnishment proceeding. (Ashby v. Watson. 9 Mo. 236; Picquet v. Swan 4 Mason, 443; Drake on Attach., §§ 672-4, 678-9, 681, 682, 683, et seq.; Beach v. Viles et al., 2 Pet. S. C. 678.) He may set up any defence which shows that in equity he owes no debt to the defendant. (Glassell v. Thomas, 3 Leigh, 113; Williamson v. Gayle, 7 Grat. 152; Ross v. McKinney, 2 Rawle, 227.)

The attaching creditor can hold the garnishee only to the extent of defendant's claim against the garnishee, and can acquire no right against the latter except such as the defendant had.

In a suit by Dyer & Robertson against Stone to recover the money in his hands, it is clear that Stone would be allowed by way of set-off, or counter-claim, the amount of their indebtedness to him accruing before the service of the garnishment, and in the case at bar he claims no more. As to the money in his hands, the relation of debtor and creditor exists between the garnishee and Dyer & Robertson. Stone, the garnishee, does not deny that this relation exists; but states facts showing that, after allowing the claims of prior attaching creditors and his own claim, he owes nothing to defendants. The instructions of plaintiffs in error also present this theory of...