Gregg v. Farmers & Merchants' Bank of Hannibal

• Decision Date: 31 October 1883
• Citation: 80 Mo. 251
• Parties: GREGG, Appellant, v. THE FARMERS & MERCHANTS' BANK OF HANNIBAL, Garnishee of the St. Louis, Hannibal & Keokuk Railroad Company.
• Court: Missouri Supreme Court

80 Mo. 251

GREGG, Appellant,

v.THE FARMERS & MERCHANTS' BANK OF HANNIBAL, Garnishee of the St. Louis, Hannibal & Keokuk Railroad Company.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Hannibal Court of Common Pleas.--HON. THEO. BRACE, Judge.

REVERSED.

H. B. Leach and T. H. Bacon for appellant.

The pleadings forming the issue in garnishment are a part of the record. Union v. Dillon, 75 Mo. 380; Drake on Attachment, (1 Ed.) § 658 a. The instruction asked by appellant properly declared the law to be that the defendant could have the depositor impleaded as a party. R. S. 1879, § 254; Wimer v. Pritchett, 16 Mo. 252; Cohen v. St. Louis, etc., 11 Mo. 374. The deposit account in the name of “W. W. Walker, Supt.,” was of itself notice that the depositor was an agent depositing his principal's money, ( Bridgman v. Gill, 24 Beav. 306,) and the deposit was prima facie that of an agent, ( Bank v. Jones, 42 Pa. St. 536,) and the defendant in execution had the legal right to enforce in its own name the payment of the money, ( Washington v. St. Marys, 52 Mo. 480,) and as legal priority in contract as well as in interest was thus shown, the garnishee was liable. Drake on Attachment, chap. 21, § 490; Morse on Banking, (2 Ed.) 300; Bills v. National, etc., 89 N. Y. 343; Raynes v. Lowell, etc., 4 Cush. 343. The garnishee's answer admitted its knowledge that W. W. Walker “held some official relation to defendant.” The debit could not have been garnisheed by a creditor of the depositor, ( Farmers, etc., v. King, 57 Pa. St. 202,) and the depositor could not have been garnisheed as the debtor of defendant in execution. Mueth v. Schardin, 4 Mo. App. 403; Neuer v. O'Fallon, 18 Mo. 277.

Easley & Russell, W. P. Harrison and D. H. Eby for respondent.

The garnishee cannot be charged because there was no privity of contract between the defendant and the garnishee; the defendant in execution could not have maintained either debt or indebitatus assumpsit against the garnishee at the time the garnishment process was served. Plaintiff's denial did not raise or state a cause of action in plaintiff, and the finding of the trial court was right on both the pleadings and evidence. R. S., § 2533; Union Bank v. Dillon, 75 Mo. 380. The trial court did not err in refusing to give the declaration of law asked by plaintiff. Dobbins v. Hyde, 37 Mo. 114; Wilson v. Murphy, 45 Mo. 409; Karnesv. Pritchard, 36 Mo. 135; 39 Mo. 157; Sheedy v. Nat. Bank, 62 Mo. 17.

HENRY, J.

On the 15th day of November, 1880, the sheriff of Marion county, by virtue of an execution in favor of plaintiff against the defendant railroad company, issued from the Hannibal court of common pleas, served a garnishment on the defendant bank. To interrogatories filed, the bank made the following answer:

“The Farmers & Merchants' Bank of Hannibal, Missouri, garnishee in the above entitled cause, now comes by its president, and in answer to the interrogatories filed herein by the plaintiff, says that at the time it was summoned herein, it was not, nor since has it become indebted in any way to the defendant, that it has not, to its knowledge, nor now has in its possession or under its control any property of any kind belonging to the defendant, unless it be as hereinafter stated. In further answer the said bank further says that W. W. Walker, of Hannibal, Missouri, who, as the bank understands, held some official relation to the defendant, the exact character of which is unknown to said bank, had deposited in said bank at sundry times prior to the time of said summons, sundry amounts of money under the name of W. W. Walker, Supt., and had on deposit at said time of summons under said name and title, the sum of 500, or more, dollars, the said bank not being advised what interest, if any, the defendant had in said money so on deposit in said bank to the credit of said W. W. Walker, Supt., as aforesaid. The said bank having fully answered, asks that it be discharged with its costs.”

To which plaintiff replied as follows: “Replying herein, the plaintiff denies each and every allegation in the garnishee's answer, except the allegations in regard to W. W. Walker and his dealings with said garnishee. And for new matter herein, the plaintiff says that said W. W. Walker was and is the agent of said St. Louis, Hannibal & Keokuk Railroad Company, to-wit: the superintendent thereof, and said money so on deposit in said bank to the credit of W. W. Walker, Superintendent, was and is the money of said St. Louis, Hannibal & Keokuk Railroad Company, and was as such deposited by said W. W. Walker, as said superintendent of said company defendant, its chief officer in this State, carrying on its business as a railroad company, corporation and common carrier. Wherefore plaintiff prays judgment of garnishment herein for the amount of judgment and costs due plaintiff on its judgment against said company, and all proper relief.”

To the plaintiff's denials and averments, the garnishee duly replied by a general denial.

The evidence introduced by the plaintiff to sustain the garnishment proceedings, is fully set out in appellant's abstract, from which it appears that W. W. Walker, on behalf of plaintiff, testified that he was the person named as W. W. Walker, Supt., as a depositor in defendant's bank; that at and prior to the time of making said deposits he was the superintendent of the St. Louis, Hannibal & Keokuk Railroad Company; that he made said deposit in the name of “W. W. Walker, Supt.,” and that the money so deposited was the money of the said railroad company. He further said that he was the chief officer of the road in this State, and that he made the deposit in the name of “W. W. Walker, Supt.,” to keep it separate from his own money, and checked it out as needed to pay the running expenses of the road, including the payment of his own salary as superintendent; that the said deposit was not his own money, and he had no claim to it as his own, “though the said railroad company was in debt to him.”

A. R. Levering, on behalf of plaintiff, testified that he was the cashier of said Farmers & Merchants' Bank, garnishee, pending said deposit in the name of W. W. Walker, Supt.” That he did not know what the word “Supt.” after...