Green's Bank v. Wickham

• Decision Date: 21 December 1886
• Citation: 23 Mo.App. 663
• Parties: GREEN'S BANK, Respondent, v. W. L. WICKHAM ET AL., GARNISHEES, Appellants.
• Court: Missouri Court of Appeals

23 Mo.App. 663

GREEN'S BANK, Respondent,

v.W. L. WICKHAM ET AL., GARNISHEES, Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

J. WICKHAM, for the appellants: The circuit court did not acquire jurisdiction over the defendant or the subject matter of the action. Fithian v. Monks et al., 43 Mo. 515; Bliss v. Smith, 78 Ill. 359; Drake on Attachments, sect. 474. The judgment against the defendant was irregular and void for want of jurisdiction of the subject matter; it was the duty of the garnishees to resist a judgment against them for a debt which was not the subject of garnishment. Drake on Attachment, sect. 696; Thayer v. Tyler, 10 Gray, 164; Smith v. McCutchin, 38 Mo. 415.

WALTER B. DOUGLAS and WILLIAM H. SCUDDER, JR., for the respondent: No declarations of law being asked or given in a cause tried by the court sitting as a jury, the findings will not be disturbed, on appeal, if they can be supported on any theory of the law applicable under the proofs. Miller v. Breneke, 83 Mo. 163; Hamilton v. Boggess, 63 Mo. 233; Gaines v. Fender, 82 Mo. 509.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff instituted suit by attachment against one Hudnall, and caused the defendants to be summoned as garnishees. The garnishees in answer to interrogatories propounded stated that Hudnall was their traveling salesman on a monthly salary, which he always drew in advance on the day it was due; that they owed him nothing and held no property belonging to him in their hands.

The plaintiff denied this answer, charging, among other things, that the garnishees were indebted, at the date of the service of the garnishment, to Hudnall in the sum of three hundred dollars, and paid him between that date and the date of the filing of their answer three hundred dollars.

These averments were denied by reply.

The amount of the plaintiff's claim was $73.59, and interest. The garnishment was served April 29, 1884. Interrogatories were filed June 3, 1884, and the garnishees answered June 5, 1884.

The plaintiff called two of the garnishees as witnesses. It appeared by their testimony, and by an account produced by them, among other things, that between the date of the service of the garnishment, and the date of their answer, they paid upon drafts drawn by Hudnall upon them the sum of one hundred and ten dollars, although the testimony is not very clear whether this money was paid on account of his salary, or on account of his traveling expenses, or on other accounts. It also appeared that they permitted Hudnall, after the garnishment, to make sundry collections, and to retain them on account. The court thereupon rendered judgment against the garnishees for $81.17, being the amount of the plaintiff's claim with interest.

No instructions were asked or given, nor were any points of law raised at the trial, except as hereinafter stated. Under these circumstances, if the finding and judgment of the court can be supported on any theory consistent with the proof, we are not at liberty to disturb it. Miller v. Breneke, 83 Mo. 163; Gaines v. Fender, 82 Mo. 497, 509; Hamilton v. Boggess, 63 Mo. 233, 251, 252; Perkinson v. Fehlig, 21 Mo. App. 327, 330; Phillips v. Holthaus, 21 Mo. App. 657. That the finding can be thus supported sufficiently appears from the facts above stated.

If the garnishees desired to raise the question that the debtor's salary for the past thirty days, although he was a non-resident, was not subject to garnishment in their hands under the provision of section 2519, Revised Statutes; or, that the drafts prior to the garnishment were in the hands of holders for value; or, that the funds were incumbered by certain trusts and not the subject matter of garnishment, they should have done so by asking appropriate instructions or declarations of...