Green v. Timmons

• Decision Date: 03 January 1888
• Parties: JOHN B. GREEN, Appellant, v. THOMAS F. TIMMONS, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 459

JOHN B. GREEN, Appellant, v. THOMAS F. TIMMONS, Respondent.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

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

Affirmed.

BRECK. JONES, for the appellant: When, by attachment and garnishment, a plaintiff has collected from a garnishee, the garnishee acting in good faith, money not due the defendant in attachment, but another person of identical name, such plaintiff must refund such money at the suit of the rightful creditor of the garnishee, the rightful creditor having had no notice of the attachment proceedings until after judgment and money paid over. Meyer v. Foulkrod, 4 Wash. C. C. 505; Freeman on Judgments, secs. 286, 288; Embra & Collins v. Hanna, 5 Johns. 101. The garnishee was justified in answering that he did owe J. B Green, and identity of name was prima-facie evidence of identity of person. 1 Greenleaf's Evid. [13 Ed.] sec 575, note 1. So in trade generally, and in tracing titles. Gilt v. Watson, 18 Mo. 274; Flournoy v Warden, 17 Mo. 435. Where one receives money which, ex aequo et bono, belongs to another, the law implies a promise on the part of the person receiving it to pay it over to the true owner. 4 Waite's Actions and Defenses, title, " Money Received." Robbins v. Ins. Co., 12 Mo 380.

ROWE & MORRIS, for the respondents.

OPINION

THOMPSON J.

This appeal is prosecuted from a judgment of the circuit court in sustaining a demurrer to the following petition:

" Now comes plaintiff, John Byron Green, and by leave of court first had and obtained, files this his amended petition and states:

That he is a citizen of, and resides in, the city of Waco and state of Texas.

That, in the year 1884, the firm of Daly, Miller & Company, of East St. Louis, state of Illinois, was indebted to him in a large sum of money, to-wit, two hundred and eighty-nine dollars and seventy-six cents, and that he had traded with said Daly, Miller & Company as ‘ J. B. Green’ and was known to them only by these said initials of his name.

That, during said year, there was owing to the defendant, Thomas F. Timmons, a debt by one J. B. Green, who then, or had formerly, resided in Abilene, Texas.

That plaintiff, John Byron Green, is not the J. B. Green who lives in Abilene, Texas, and knows nothing of him, and is not now, and has never been, in any way indebted to the defendant herein.

That, to-wit, on the--day of October, 1884, the defendant herein sued out a writ of attachment on his said debt against J. B. Green (the debtor being the J. B. Green of Abilene, and not this plaintiff) before a justice of the peace in East St. Louis, Illinois, and under said writ garnished all moneys, debts, and credits of ‘ J. B. Green’ in the hands of said Daly, Miller & Company.

That said garnishees were then indebted to this plaintiff, as aforesaid, under this name as ‘ J. B. Green,’ but were not at the time they were served with said garnishment, nor were they at any time during the pendency of said attachment suit, in any way indebted to the other J. B. Green above described, who was the debtor of the said Timmons.

That the said garnishees being, at the time of the service of said garnishment, indebted to plaintiff, ‘ J. B. Green,’ of Texas, as aforesaid, and not knowing or having any reason to believe that the J. B. Green of Texas, who was the defendant in the said attachment suit, was any other than the J. B. Green to whom they were indebted, did, as in law they were bound to do, duly answer to said garnishment that they, the garnishees, were indebted to ‘ J. B. Green,’ as above stated.

That pursuant to answer of garnishees, judgment was entered against said garnishees in favor of said Timmons, who is defendant...