Hockaday v. Sallee

• Decision Date: 31 January 1858
• Citation: 26 Mo. 219
• Parties: HOCKADAY, Defendant in Error, v. SALLEE, GARNISHEE, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 219

HOCKADAY, Defendant in Error,

v.SALLEE, GARNISHEE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1858.

1. The act of March 5, 1849, (Sess. Acts, 1849, p. 67,) exempting certain property of wives from certain debts of their husbands, is not applicable where such debts were contracted before the passage of the act.

2. A promissory note assigned to a wife is subject to attachment for the debt of the husband.

Error to Callaway Circuit Court.

Hockaday obtained a judgment before a justice of the peace against Sandford Jamison in January, 1857, on a promissory note due in July, 1847. An execution issued and John Sallee was summoned as garnishee. On the trial in the circuit court of the issues raised in this garnishment proceeding, it appeared that Sallee, the garnishee, had executed a note for $500 in favor of T. B. Harris, which note was assigned by Harris to Mrs. Jamison, the wife of the defendant in the execution.

Jones and Hayden, for plaintiff in error.

I. Only a debtor of the defendant in the execution is subject to garnishment on an execution issued by a justice of the peace. (R. C. 1855, p. 965, § 11.) The note assigned to Mrs. Jamison could not be subjected to the payment of her husband's debts contracted before the acquisition of the property. If Mrs. Jamison was the sole owner of the property put into the partnership, being solely interested in the note, it could not be applied to the payment of her husband's debts. If she was interested in the partnership jointly with her husband in proportion to the respective amounts put in by each, the interest of neither being ascertained, the note was not subject to garnishment.

II. There is no provision in the law relating to executions from justices' courts by which Mrs. Jamison could interplead and claim the note as her property. Not being a party to the suit, she would not be bound by the judgment. She could institute suit against the garnishee and coerce the payment of the debt a second time. (16 Mo. 252.) There was no evidence sufficient to warrant the verdict for plaintiff. The answer of the garnishee is to be taken as true until disproved by two witnesses, or by one witness and strong corroborating circumstances. (Davis v. Knapp, 8 Mo. 657; 9 Mo. 640; 10 Mo. 104; 12 Mo. 76.)

Hardin, for defendant in error.

I. The debt on which Hockaday obtained judgment against Jamison was contracted before the passage of the act of March 5, 1849. (See Cunningham v. Gray, 20 Mo. 170; Tully v. Thompson, 20 Mo. 277.) The rules of evidence as well as the form of verdict are the same in trials of issues with garnishees as in ordinary cases. (R. C. 1855, p. 965, § 11; p. 269, § 32.)

RICHARDSON, Judge, delivered the opinion of the court.

The questions to be considered in this case are unaffected by the act of March 5, 1849, for the benefit of married women, because the debt on which the judgment was rendered was incurred before the passage of the act. (Cunningham v. Gray, 20 Mo. 170; Tally v. Thompson, Id. 277.)

The note executed by the garnishee and assigned to Mrs. Jamison during her coverture must be treated in all respects as if it had been made payable directly to her; and in reference to the power of the husband over the wife's choses in action, it may be observed that there is a difference between such as accrue before and after marriage. At common law a note executed to the wife during coverture becomes the absolute property of the husband, but subject to her right of survivorship in the event of his death before he reduces it to his...