Hoffman v. Mechanics-American Nat. Bank

• Decision Date: 21 September 1926
• Docket Number: No. 19467.,19467.
• Parties: HOFFMAN et al. v. MECHANICS-AMERICAN NAT. BANK OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

287 S.W. 874

HOFFMAN et al. v. MECHANICS-AMERICAN NAT. BANK OF ST. LOUIS et al.

No. 19467.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Attachment suit by H. Hoffman and another, doing business as H. Hoffman & Co., against M. Feuer and another, doing business as Feuer & Spiegel, in which the Mechanics-American National Bank of St. Louis (now First National Bank of St. Louis) was garnisheed. From a judgment for garnishee, plaintiffs appeal. Affirmed.

Carl M. Dubinsky and H. G. Stein, both of St. Louis, for appellants.

Thomas D. Cannon, of St. Louis, for respondent.

BENNICK, C.

Plaintiffs instituted an attachment suit in the circuit court of the city of St. Louis on June 3, 1919, against defendants, M. Feuer and S. Spiegel, doing business as Feuer & Spiegel, and on the same date a garnishment was issued and served upon the Mechanics-American National Bank in St. Louis (now First National Bank of St. Louis), a corporation, organized under the laws of the United States. The garnishment was ancillary to the attachment suit. Plaintiffs filed interrogatories, to which the garnishee answered that it neither owed defendants anything, nor did it have any of their property in its possession. Plaintiffs denied the allegations in the garnishee's answer, and further stated that on June 3, 1919, plaintiffs had paid to said garnishee a cheek in favor of the defendants, and that at the time of the service of the garnishment it had in its possession, belonging to defendants, the sum of $887.27. The garnishee's reply to plaintiffs' denial of its answer was in turn a general denial.

Thereafter the cause was tried on the issues joined by the above pleadings, resulting in a verdict and judgment for plaintiffs, from which the garnishee appealed to this court. The judgment of the circuit court was reversed, and the cause remanded (211 Mo. App. 643, 249 S. W. 168), for the reason that no judgment had been obtained against defendants Feuer & Spiegel in the attachment suit prior to the entry of the judgment against the garnishee, from which it followed that the judgment against the garnishee was invalid.

After remand the garnishee filed an amended reply to plaintiffs' denial of its answer, in which, after denying generally each and every allegation in plaintiffs' denial of its answer, it alleged that plaintiffs had never recovered a valid final judgment in this state against defendants, and that the court was without jurisdiction to subject the property of the garnishee to garnishment proceedings.

The evidence introduced upon a retrial of the case with reference to the issuance and service of the writ of garnishment upon the garnishee was the same as that at the first trial, which is fully stated in our former opinion, and for this reason a restatement of the facts is unnecessary. It appears, however, that on December 6, 1920, and during the pendency of the former appeal, plaintiffs had obtained a judgment by default against defendants in the attachment suit in the sum of $694.29. Service was had upon defendants, who were nonresidents by an order of publication directed to M. Feuer and S. Spiegel, doing business as Feuer & Spiegel. The evidence disclosed, however, that the names of defendants were Morris Feuer and John W. Spiegel. At the close of plaintiffs' case the court directed a verdict in favor of the garnishee for the reason that a valid judgment in favor of plaintiffs and against defendants had not been shown, inasmuch as the order of publication, which had designated defendants merely by their initials instead of by their Christian names, was insufficient. Thereupon judgment was rendered in favor of the garnishee, from which plaintiffs have appealed.

A timely motion was filed by the garnishee asking for an allowance for expenses and attorney's fees. This motion was sustained, and an allowance of the sum of $150 made. From the order of the court overruling the motion to set aside such allowance to the garnishee, plaintiffs have also appealed.

Plaintiffs assign as error the action of the court in peremptorily directing the jury to return a verdict in favor of the garnishee. The action of the court, however, was entirely proper. Upon the former appeal of this case we held that before a judgment could be rendered against a garnishee it was necessary that a valid judgment must have been previously rendered against the principal defendants, and for the reason that no such judgment had been obtained against the defendants in this case at that time we reversed the judgment against the garnishee and remanded the case for a new trial. In holding that a valid judgment against the principal defendants is a prerequisite to the entry of a judgment against the garnishee, we were amply supported by authority. Peter Hauptman & Co. v. Whittle, 85 Mo. App. 188; Miller v. Anderson, 19 Mo. App. 71. Moreover, the burden is on a plaintiff, who seeks a judgment against a garnishee, to show that a valid judgment has previously been obtained against the principal defendant. Peter Hauptman & Co. v. Whittle, supra.

In the case at bar it was shown that defendants had been summoned by publication directed to M. Feuer and S. Spiegel, doing business as Feuer & Spiegel; that no personal service was' had upon them, and that they did not enter their appearance in the attachment suit. The undisputed evidence disclosed that the names of defendants were Morris Feuer and John W. Spiegel. The court directed a verdict in favor of the garnishee upon the theory that plaintiffs had failed to carry their burden of proving a prior valid judgment against the principal defendants, inasmuch as the order of publication in such action, which had...