Groschke v. Bardenheimer

• Decision Date: 14 April 1884
• Citation: 15 Mo.App. 353
• Parties: JULIUS GROSCHKE, Plaintiff Appellant, v. JOHN BARDENHEIMER, GARNISHEE, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 353

JULIUS GROSCHKE, Plaintiff Appellant,

v.JOHN BARDENHEIMER, GARNISHEE, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 14, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

FINKELNBURG & RASSIEUR, for the plaintiff: Fraud is not necessarily to be proved by direct testimony.-- Schultz v. Christman, 9 Mo. App. 588. The court had a right to the aid of a jury to determine the question of ownership. The defendant had joined in the issue, and did not ask that Foell be required to interplead; the question of ownership of the note was properly left to a jury; the statute is directory merely.-- Daggett v. St. L. M. F. Ins. Co., 19 Mo. 201; Weil v. Tyler, 38 Mo. 558; McKittrick v. Clemens, 52 Mo. 160. Defendant, had he seen fit, could have required Foell to interplead.-- Potter v. Stevens, 40 Mo. 591; Wilson v. Murphy, 45 Mo. 411. Defendant complains that by the judgment in this case he may be compelled to pay twice, once by plaintiff and again by the assignee of note. If so, he has his remedy against the attached debtor.-- Funkhouser v. How, 24 Mo. 44; Dobbins v. Hyde, 37 Mo. 118. The levy under the alias execution was not a satisfaction of the judgment, but only conditionally upon the failure of the claimant to make good his claim.-- Thomas v. Cleveland, 33 Mo. 127; Maguire v. Marks, 28 Mo. 196.

FRED. GOTTSCHALK, for the garnishee: The sufficiency of the “denial” is to be tested by the same rules as that of a petition.-- Union Bank of Trenton v. Dillon, 75 Mo. 380. A party can not impeach his own witness.-- Stockton v. Demuth, 7 Watts, 39; Brown v. Wood, 19 Mo. 475; Chandler v. Fleeman, 50 Mo. 239. Garnishing creditors have no other or greater rights than their debtors had against the garnishee at the time of the garnishment.--Drake on Attach., sects. 458, 464; Nat. Bank v. Staley, 9 Mo. App. 147; Sheedy v. Bank, 62 Mo. 24. Garnishment is one of the modes pointed out by statute, by which an execution is executed, it is not a new suit, but * * * a means of obtaining satisfaction.-- Tinsley v. Savage, 50 Mo. 141.

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

Bardenheimer was summoned as garnishee on an execution issued on a judgment obtained by Groschke against one Johl. The garnishee denied any indebtedness to Johl, except that he said in his answer to interrogatories, that, on September 20, 1882, he owed Johl $800, for which indebtedness, he, on that day, executed and delivered to Johl the note of him, Bardenheimer, for that sum, which note was negotiable and payable at six months, with interest at five per cent per annum. The garnishee further said that he had been informed that this note was negotiated; and that it is held by a person unknown to the garnishee, and is in possession of the Mechanics' Bank, but whether as holder, or for collection, the garnishee is not informed.

The plaintiff filed a denial, and afterwards an amended denial. These denials are to the same effect, and allege that Bardenheimer, after he was summoned as garnishee, conspired with Johl and one Foell to deprive plaintiff of his recovery against Johl, in furtherance of which conspiracy Bardenheimer, on December 13, 1882, executed the note mentioned in this answer, and delivered the same to Johl, who then indorsed and delivered the same to Foell, who gave no consideration for the transfer, and received the same for the fraudulent purpose mentioned. Knowing that Bardenheimer had been summoned as garnishee herein; and that Foell holds the note for Johl's benefit.

Before the amended denial was filed, plaintiff moved for an order on Johl to produce in court the note in question. The trial judge heard testimony in support of this motion. After which he overruled the motion in the following language:--

“The testimony in support of this motion leaves my mind in so much doubt as to the right of Mr. Foell to hold and collect the proceeds of this note, that I shall not order him to deliver the note into court. This proceeding is summary without the intervention of a jury, and I do not feel disposed to make an arbitrary order divesting a party of the possession of property unless the proof is very clear. There are other modes of trying the question of the good faith of the parties and I prefer to give the parties the benefit of a jury trial.”

The amended denial and reply were then filed, and the issues thus made were submitted to a jury under instructions given by the court. The jury found that Bardenheimer was indebted to Johl in the sum of $825. Motions in arrest and for a new trial were overruled, and the court made an order that the garnishee pay to the sheriff, for the use of plaintiff, before June 30, 1883, the amount found by the jury to be due. Afterwards the court set aside the order overruling the motions in arrest and for new trial, and continued the motions to the next term. Meanwhile plaintiff had sued out an alias execution to the October term, under which the sheriff levied upon $2,100 of money as the property of defendant Johl. This money was claimed by Johl's wife; plaintiff gave bond to the sheriff, and he applied the money to the execution, and paid over to plaintiff $1,844.65 in full of his debt and interest, leaving $178.19 in the sheriff's hands. This payment was made subject to the claim, and the sheriff made return accordingly. Defendant then pleaded this payment to plaintiff in bar; and the facts appearing to the court as stated, the court overruled the motion for new trial and in arrest, and ordered that all further proceedings upon the verdict be finally stayed, and that plaintiff recover of defendant the costs up to July 25, 1883, the date on which plaintiff received the money from the sheriff, and that the costs after that date be taxed against plaintiff, and that executions issue accordingly.

Both parties appeal.

1. It is claimed by appellant Bardenheimer that the denial of the answer of the garnishee states no facts constituting a cause of action. It states that the note described in the answer of the garnishee was the property of the execution defendant when the garnishee was summoned, and continued to be his property until after its maturity; that the garnishee, after he was summoned, combined with the execution defendant and Foell to deprive plaintiff of his right to recover the $800, admitted in the garnishee's answer to be due since September 20, 1882; that the note was fraudulently made and delivered by the garnishee to the execution defendant, who indorsed and delivered the same to Foell without consideration; and that Foell received the same knowing the garnishee had been served, and holds the same for the use of the execution defendant; and that all this was done in pursuance of a fraudulent purpose on the part of the parties concerned to defraud the execution plaintiff. We do not perceive why these allegations, if tested by the rules of pleading and practice applicable to a petition, are not good enough to support the verdict. Whether the denial was demurrable we need not inquire.

2. It is contended by defendant that the court erred in allowing plaintiff to introduce the books, ledger, journal, and cash book, and check book of the witness Foell. The ground of this objection is, that the only purpose of this testimony was to impeach Foell by contradicting and discrediting his testimony and that this was not competent, because Foell was plaintiff's witness. It is true that the general rule of law is, that a party can not discredit the testimony of his own witness, or show his incompetency. But a person may sometimes resort to other evidence to prove his case though denied by the witness first called by him to support it. These books were not introduced to contradict any statement of the witness as to what these books contained. The case was one in which plaintiff assumed the task of proving fraud from circumstances. He had a right to introduce the books of the witness, and it was for the jury to determine from all the statements of all the witnesses whether the purchase of the Bardenheimer note from Johl by Foell was a bona fide purchase, or a merely...