France v. Evans

• Decision Date: 06 December 1886
• Citation: 2 S.W. 141,90 Mo. 74
• Parties: France et al., Appellants, v. Evans et al., Garnishees
• Court: Missouri Supreme Court

2 S.W. 141

90 Mo. 74

France et al., Appellants, v. Evans et al., Garnishees

Supreme Court of Missouri

December 6, 1886

Appeal from Worth Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

B. F Lucas for appellants.

(1) The court below erred in rejecting the judgment recovered by the plaintiffs, France & Hunter, against Isaac W. Salisbury, when offered in evidence by them as the foundation of the garnishment proceedings. (a) Because the return "legally served by H. K. Linger, deputy constable, by leaving a copy of the same at the defendant's residence with a member of defendant's family above the age of fifteen years," was a good return and showed with certainty to a common intent that it had been served the length of time required by the statute, even as against the defendant therein, Isaac Salisbury, if he had been in court and objecting to the service. At most there would be but an irregularity which could not be taken advantage of collaterally. Latruelle v. Dorleque, 35 Mo. 233; Shaw v. Gregoire, 35 Mo. 342; Bernacker v Miller, 44 Mo. 102; Martin v. Barron, 37 Mo. 301; Kane v. McCowan, 55 Mo. 181; Bailey v. McGinnis, 57 Mo. 362; Sheedy v. Bank, 62 Mo. 24. (b) Because Emma Evans and James Evans were neither parties nor privies, but strangers to the judgment of France and Hunter against Salisbury, and they could, therefore, under no circumstances, vacate or impeach that judgment. Hardin v. Lee, 51 Mo. 241. (2) The court below erred in rejecting the garnishment proceedings filed in this case, when offered in evidence by the plaintiffs, on the ground that a married woman could not be made a garnishee in attachment or garnishment proceedings. R. S., 1879, sec. 3022; Lackland v. Garesche, 56 Mo. 267. (3) A married woman may be made a garnishee in attachment or garnishment proceedings in any case in which she is debtor to, or has in her hands money, goods, property or effects of the defendant in the suit or judgment, whenever such debt can be enforced or such money, property, goods or effects can be recovered from such married woman by action at law; and the payment of a debt due by a married woman, on a mechanic's or material man's lien for work done or materials furnished in the erection and construction of any building, erection or improvement, erected or made for her immediate use, enjoyment or benefit, can be recovered by action against her on the mechanic's lien, which is strictly an action at law. R. S., secs. 3172, 3192; Tinsley v. Savage, 50 Mo. 141; 26 Mo. 65; Sheedy v. Bank, 62 Mo. 24. (4) That the court below erred in rejecting the record of the finding of the jury in the action brought by Isaac W. Salisbury against Emma Evans and James Evans on the mechanic's lien filed by him, when offered in evidence by plaintiffs to show the amount of the indebtedness from the said Emma Evans on said mechanic's lien; as garnishee is liable, and only liable, to plaintiffs to the extent of her liability to Salisbury. McPherson v. Railroad, 69 Mo. 103; Funkhouser v. Eveland, 3 Mo.App. 602. (5) That the court below erred in overruling plaintiffs' motion for new trial.

OPINION

Norton, J.

This is a proceeding by garnishment. An execution was issued by a justice of the peace on a judgment by default in favor of plaintiffs against Isaac W. Salisbury, and placed in the hands of a constable who summoned the defendant, Emma Evans and her husband as garnishees. They appeared and filed answer on which an issue was made, on the trial of which in the circuit court, where it had been taken by appeal, plaintiff offered in evidence the justice's record and docket entry of the judgment recovered by plaintiffs against said Salisbury, and upon which the garnishment proceedings were founded. This evidence was objected to on the ground that it did not show service of the summons ten days before the judgment by default was rendered. The objection was sustained and thereupon the plaintiffs offered, and the court received in evidence the original summons issued in the case with the return of service endorsed thereon, which service was sworn to on the nineteenth...