Jackson v. Brown

• Decision Date: 06 May 1919
• Docket Number: No. 15443.,15443.
• Citation: 211 S.W. 893
• Parties: JACKSON v. BROWN.
• Court: Missouri Court of Appeals

211 S.W. 893

JACKSON v. BROWN.

No. 15443.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 9, 1919.

Opinion Filed May 6, 1919.

Rehearing Denied May 22, 1919.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by William T. Jackson against Harvey E. Brown, garnishee of Sylvester G. Lewis. From judgment for plaintiff, defendant appeals. Reversed.

Kinealy & Kinealy, of St. Louis, for appelant.

Peers & Peers, of St. Louis, for respondent.

REYNOLDS, P. J.

One William T. Jackson recovered judgment against Sylvester G. Lewis before a justice of the peace for $150, with interest and costs. Execution was issued on this judgment by the justice and a transcript of the judgment duly filed in the office of the circuit court of the city of St. Louis. Execution issued out of the circuit court on this judgment December 2nd, 1915, against Lewis. On February 5th, 1916, and, at the February term of the court, the sheriff made a nulla bona return to the execution as to Lewis, and also returned that by direction of plaintiff's attorney he had executed the writ on December 2nd, 1915, "by declaring in writing to Harry E. Brown" that he attached in his hands all debts due him to the defendant Lewis, etc., or so much thereof as sufficient to satisfy the debt, etc., and that he summoned him, that is Harry E. Brown, in writing as garnishee, and by declaring to said Harry E. Brown in writing that he summoned him to appear before the Circuit Court of the city of St. Louis at the return term of the writ, to-wit, the first Monday in February, 1916, to answer such interrogatories, etc., and at the same time delivered to Harry E. Brown a written notice of the garnishment. This is signed in the name of the sheriff by F. Beumer, Deputy.

On February 8th, 1016, the statutory interrogatories were filed in plaintiff's name, the cause entitled in the name of plaintiff and defendant, with the name of Harry E. Brown as garnishee, the interrogatories addressed to and to be answered by Harry E. Brown, theretofore summoned as garnishee, as it is said. Default was made by Brown, a writ of inquiry granted as to him and, on March 1st, 1916, and during the February, 1916, term, Brown being still in default, judgment was rendered against him in the name of Harry E. Brown in the sum of $162.25. This judgment was afterwards assigned on the record to E. P. Peers. Afterwards, at the April term, 1916, of the court, a motion was filed to amend the notice of garnishment, the sheriff's return, and the judgment, on the ground that the name "Harry E. Brown" was by mistake and inadvertence written instead of "Harvey E. Brown," but that in fact the service was on Harvey E. Brown.

A copy of this motion was served by plaintiff on Harvey E. Brown, together with a notice that it would be called up for hearing in Division No. 1 of the circuit court on April 25th, 1916. On that day, that being in the April, 1916, term, it was called for hearing, the parties appearing by their respective attorneys and the cause came on for hearing before the Honorable Wilson A. Taylor, Judge.

Harvey E. Brown, by his attorney, objected to the introduction of any evidence in support of the motion, on the ground that the court had no power, after the end of the term, to amend the judgment on oral evidence, and on the further ground that in a garnishment proceeding, under the statute, the sheriff must not only summon the garnishee but must almost make a declaration in writing that he attaches in the garnishee's hands the debt, and that the return of the sheriff in this case shows that the declaration he made was that he attached a debt in the hands of Harry E. Brown and having made that declaration at that time it cannot now be changed so as to show that he made a declaration attaching a debt in the hands of Harvey E. Brown. This objection was overruled, the defendant garnishee excepting.

There was evidence tending to show that the service had in fact been made on Harvey B. Brown. But none showing any memorandum made at the time by the judge or clerk or in the files or records upon which nunc pro...