Holker v. Hennessy

• Decision Date: 23 February 1898
• Citation: 44 S.W. 794,143 Mo. 80
• Parties: HOLKER v. HENNESSY et al. (HOWENDOBLER, Garnishee).
• Court: Missouri Supreme Court

44 S.W. 794

143 Mo. 80

HOLKER v. HENNESSY et al. (HOWENDOBLER, Garnishee).

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

BAIL BOND — INDEMNITY — GARNISHMENT — COLLATERAL ATTACK — LIEN.

1. An attachment was begun against a prisoner at large on bail, and the surety on the bail bond was summoned as garnishee. It appeared that defendant had deposited money with the garnishee, indemnifying him against liability as his surety. The garnishee had not been released from liability on the bond, but plaintiff contended that the bond, by reason of certain irregularities, was a nullity. Held, that the garnishee was not liable.

2. The validity of the bail bond could not thus be collaterally attacked.

3. The statutory lien given on a criminal's estate to the person injured by the crime cannot, before conviction, be enforced by garnishment against money deposited by the prisoner to indemnify a surety on his bail bond.

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Suit of attachment by Henry Holker against Ed Hennessy and others, in which John W. Howendobler was summoned as garnishee. From a judgment sustaining a demurrer of the garnishee to plaintiff's reply to the garnishee's answer, plaintiff appeals. Affirmed.

Frank Griffin and W. W. Ramsay, for appellant. Gallatin Craig, for respondent.

BRACE, P. J.

The respondent, Howendobler, was summoned as garnishee in a suit by attachment instituted in the Nodaway circuit court by appellant, Holker, against the defendants Hennessy, Green, et al. This is an appeal from a judgment of said circuit court sustaining a demurrer of the garnishee, Howendobler, to the reply of the plaintiff, Holker, to the garnishee's answer, denying possession of any effects or credits of, or any indebtedness to, the defendants. By mistake, the appeal was taken to the Kansas City court of appeals, and thence transferred to this court. Since the appeal, the plaintiff has died, and the cause has been revived here in the name of his administratrix, Margaret M. Holker.

The facts stated in the reply, as epitomized in the brief of counsel for appellant, are as follows: "(1) That Ed Hennessy and John Green, with their co-defendants in the attachment suit, were justly indebted to the appellant in the sum of $5,233.33, for having on the 13th day of June, 1894, feloniously stolen that sum from appellant. (2) That for the commission of said felony said Hennessy and Green were, at the June term, 1894, of the Nodaway county, circuit court, indicted, and, for want of bail, were committed to the jail of Nodaway county, then in charge and kept by one Benjamin F. Pixler, sheriff of said county. (3) That, at the date of their commitment, the circuit court, by its order, entered of record, fixed the amount of bail to be required of said Hennessy and said Green each severally at the sum of $4,000. (4) That on the 13th day of September, 1894, while the Honorable Cyrus A. Anthony, judge of said court, was absent from the county, the said Hennessy and Green, their co-defendants in attachment acting with them, in order to procure the release of said Green from custody, did deliver to and deposit with the garnishee, John M. Howendobler, and one Elmer Fraser, subject to the order of this garnishee, the sum of $2,500, with the understanding that the same be paid back to Green on the release of Howendobler from liability upon a recognizance which they induced said Howendobler to then sign in the sum of $2,500, said pretended bail bond taken for said Green's appearance at the November term of said court, 1894. (5) That on the 24th day of September, 1894, while the judge of said court was absent from the county, the said Hennessy and Green, their codefendants acting with them, in order to procure the release from custody of said Hennessy, did deliver to and deposit with garnishee the further sum of $2,500, to induce said garnishee to sign another pretended bail bond for the appearance of said Hennessy at November term, 1894, in the sum of $2,500. (6) That said pretended bail bonds were accepted by Sheriff Pixler, and said Hennessy and Green were released from jail on account thereof. (7) That the money so left with garnishee was left as indemnity against legal liability on account of garnishee having signed said pretended bonds. (8) That said pretended bail bonds were and are void, and of no virtue and effect in law. (9) That said Sheriff Pixler was without legal authority to receive, accept, or approve said bonds, or either of them. (10) That no order of court, nor the judge thereof in vacation, nor the clerk thereof, authorized the making, taking; or accepting of said bonds. (11) That the amount of each of said bonds, to wit, $2,500, was not indorsed upon the warrant of arrest or on the commitment upon which the said...