Funkhouser v. How

• Decision Date: 31 October 1856
• Parties: FUNKHOUSER et al., Plaintiffs in Error, v. HOW, Defendant in Error.
• Court: Missouri Supreme Court

24 Mo. 44

FUNKHOUSER et al., Plaintiffs in Error,

v.HOW, Defendant in Error.

Supreme Court of Missouri.

October Term, 1856.

1. A judgment against a garnishee in an attachment will not protect him against a subsequent recovery in favor of one who had, previously to the garnishment, taken an assignment of the debt from the defendant in the attachment.

2. Where a garnishee, having notice of an assignment by the defendant in the attachment, fails to set up this matter as a defense to the garnishment, and a judgment is rendered against him, and he pays over the money to the attaching creditor; held, that the assignee is not entitled to recover the amount so paid from such attaching creditor, although such creditor had notice of the assignment during the pendency of the garnishment.

Error to St. Louis Court of Common Pleas.

Plaintiffs state in their petition substantially that on the 16th day of April, 1850, one Thomas Crew caused the life of Jacob Lesher to be insured for his own benefit, by the Phœnix Life Insurance Company, in the sum of $500; that Lesher died March 1st, 1851; that on the 3d of July, 1851, Thos. Crew assigned said policy to Micajah B. Crew; that said Micajah, on the 2d day of August, 1851, assigned the same to plaintiffs; that “about the 1st of May, 1852, the defendant, under color of some judicial proceedings, commenced after the assignments aforesaid, and to which neither said Micajah nor these plaintiffs were parties, wrongfully and unjustly required and compelled said insurance company to pay to him said sum of $500, and has received said sum in discharge of the obligation of said company under said policy. Plaintiffs state that said sum of right belongs to them; that the same has never been paid to them, and they ask judgment against the defendant therefor with interest,” etc.

The finding of the facts by the court is as follows: “On the 16th day of April, 1850, Thomas Crew caused the life of Jacob Lesher to be insured by the Phœnix Life Insurance Company for the benefit of said Crew, in the sum of $500; about the 1st day of March, 1851, and while the policy of insurance was subsisting, said Lesher died, and said Crew became entitled, according to the terms of the policy, to receive of said company the sum of $500. On the 3d of July, 1851, Thomas Crew, for a valuable consideration, assigned said policy to Micajah B. Crew. On the second of August, Micajah B. Crew assigned the said policy to the plaintiffs; but there does not appear to have been any consideration for the last named assignment, except so far as it is to be presumed from the fact of the assignment. The agent of the said company (Wetzell) made said contract of insurance with said Thomas Crew for said company, and received the premium therefor. After the death of said Lesher said agent forwarded notice thereof and proofs to the said company, that the loss might be adjusted; but said proofs being informal, were returned to said agent to be corrected. Said proofs were formally corrected, and forwarded again by said agent to said company. Thomas Crew, before and on the 1st day of March, 1851, being indebted to the firm of How, Claflin & Cook, said firm on the 5th day of August, 1851, instituted suit in this court by attachment against said Crew to recover the sum of $625.37 then due, and caused said insurance company to be summoned as garnishee in said cause on the 5th day of August, 1851. The said company filed its answer on the 26th January, 1852, in which no mention was made of any assignment, and judgment on said attachment suit was rendered against said Thomas Crew on the 20th day of March, 1852, for $659.62, and against said insurance company on the garnishment, on the 20th day of March, 1852, for $480.80, the balance confessed, less $19.20 appropriated to the costs of said suit. Before the company adjusted and allowed the loss, and after the company had been garnisheed and before the company answered, plaintiffs brought to said company the policy with the assignments thereon, and claimed the benefit thereof. They were informed by said company of the existence of the garnishment, and the defendant was soon informed by the company of the claim of the plaintiffs. Thereafter and on the 14th day of January, 1852, the said company acted upon the proofs of loss, and allowed, in the name of Thomas Crew, $500 under said policy. The firm of How, Claflin & Cook was composed of John How, William Claflin and Robert Cook. Pending the attachment and garnishment, and on the first day of March, 1852, the plaintiffs moved the court for leave to interplead for said fund, which motion was overruled by the court. The plaintiffs were all this time residents of and doing business in the city of St. Louis. After judgment had been rendered against the said insurance company upon its answer as garnishee of said Thomas Crew, the company paid to the attorney of How, Claflin & Cook the amount of said judgment--$480.80--which sum the said attorney paid to said How, C. & C. a few days after the assignment by Thomas Crew to Micajah B. Crew; and Thomas Crew gave notice thereof to the aforesaid agent of the insurance company. No notice of the assignment by Micajah B. Crew to the plaintiffs was given until shortly after the garnishment answer was filed and before any judgment was rendered. Thos. & M. B. Crew and the said agent of the insurance company were residents of the State of Illinois. Whereupon the court declares that the plaintiffs are not entitled to recover, and gives judgment for the defendant.”

A motion for a review having been overruled, the cause was brought to this court by the plaintiffs by writ of error.

J. A. Kasson and R. M. Field, for plaintiffs in error.

I. The defendant received the money of plaintiffs with notice of their rights, and is liable to pay over to them. (Colcord v. Daggett, 18 Mo. 560; Quarles v. Porter, 12 Mo. 83; Powers v. Heath's Adm'r, 80 Mo. 331.)

II. The attaching creditor can acquire no greater rights against the garnishee than the judgment debtor had, with the single exception of fraud. (Drake on Attachment, § 677.) At the time in question, Thomas Crew, the judgment debtor, had no rights at all. They had been assigned. Therefore How acquired no right to the fund, and must pay to the party entitled. (Stevens v. Stevens, 1 Ashmead, 190; Hudson v. Robinson, 4 M. & S. 478.)

Krum & Harding, for defendant in error.

LEONARD, Judge, delivered the opinion of the court.

In Gates v. Kirby (13 Mo. 175), the maker of a promissory note, being sued for the money by one to whom it had been assigned, pleaded that he had been previously garnisheed as the debtor of the original payee, and condemned to pay the debt to the attaching...