Jenkins v. Jenkins
| Decision Date | 20 November 1951 |
| Docket Number | No. 28173,28173 |
| Parties | JENKINS v. JENKINS et al. |
| Court | Missouri Court of Appeals |
William C. Barnett, St. Louis, for appellant.
Milton F. Napier, St. Louis, D. W. Gilmore, Benton, (Louis E. Zuckerman, St. Louis, of counsel, on the brief), for respondent.
WOLFE, Commissioner.
This is an appeal from a judgment against a garnishee, who, in his answer to interrogatories served upon him, stated that he did not owe any money to the defendant judgment debtor and did not have possession of any money or property belonging to him. The plaintiff filed a denial of the answer to which the garnishee filed no reply and the court found that the garnishee was indebted to the defendant in the sum of $1970.25, and directed that the sum be paid to the sheriff within twelve days. After the garnishee's motion for a new trial had been overruled and no payment, as directed, had been made, the court entered a judgment for $1970.25 against the garnishee, and it is from this judgment that he appeals.
The defendant, Lawrence Jenkins, was indebted to the plaintiff in the sum of $1955. This was a judgment debt which arose by virtue of a decree of divorce which gave to the plaintiff the care and custody of two minor children and awarded to her the sum of $75 a month for their support. The defendant had not made payments in compliance with the decree and there had become due $1955, for which amount an execution was issued.
A writ of garnishment was served upon William C. Barnett on January 12, 1950, attaching all money, credits, choses in action and debt due the defendant in the hands of the garnishee. This was followed by the plaintiff filing interrogatories in which she inquired of the garnishee if he had in his possession any goods, chattels, money, credits, etc. belonging to the defendant, or if he was indebted to the defendant, and, if so, the amount thereof. Another question propounded asked if the garnishee was bound by any contract to pay to the defendant money not yet due and a fourth question asked if the defendant was in the employment of the garnishee. To each of these questions the garnishee answered 'no' and asked for release from further obligation under the writ that had been served upon him.
The plaintiff filed a reply in which she stated that the garnishee had been employed by Lawrence Jenkins, the defendant, as his attorney in a suit for damages arising out of personal injuries. She alleged that Barnett had brought an action on behalf of Jenkins against the Illinois Terminal Railroad Company and that a settlement had been reached whereby the Illinois Terminal Railroad Company paid to Jenkins, through his attorney, the sum of $3940.50. She stated that this amount was paid by a draft, dated January 12, 1950, which named as payees 'Lawrence J. Jenkins and William C. Barnett, his attorney'. The reply further asserted that the writ of garnishment had been served upon the garnishee immediately after the settlement had been concluded, and prayed that the garnishee be directed to deposit the draft with the registry of the court. The garnishee did not reply to the plaintiff's denial of his answer, and, a jury having been waived, the cause was tried by the court.
The decree of court awarding the plaintiff $75 a month for the support of her two minor children, dated September 26, 1947, was put in evidence and the plaintiff testified that none of the monthly installments had been paid. The garnishee was then called to the stand by the plaintiff, and in response to questions by her attorney he stated that he had represented Jenkins in a suit against the Illinois Terminal Railroad Company which had been settled for $5,000. This sum was credited with $1059.50, which Jenkins had received as sick benefits, and the balance of $3940.50 was paid by a draft payable to Jenkins and the garnishee as his attorney. On January 12, 1950, as Jenkins and Mr. Barnett were leaving the office of the lawyer where the settlement had been made, Mr. Barnett was served with the writ of garnishment. Mr. Barnett stated that the draft had been endorsed and the total amount for which it was drawn was on deposit.
On his own behalf the garnishee testified that Jenkins had agreed to pay him an attorney's fee equal to fifty per cent of the amount recovered and that there was due him as his fee $1970.50. He further stated that he had advanced some money to Jenkins and guaranteed the payment of other money Jenkins owed, but there was no testimony from which the total amount of the advancements claimed could be determined. Mr. Barnett also testified that Jenkins had assigned his cause of action to him in payment for the sums mentioned, but the written assignment offered in evidence, while not of record, was admittedly made after Mr. Barnett had been served with the writ of garnishment.
On July 13, 1950, the court found that the assignment was executed subsequent to the garnishment and was inferior to it and directed that the garnishee pay to the sheriff of St. Louis County $1970.25 within twelve days. Nothing was paid into court and a motion for a new trial was filed and was overruled on July 29, at which time a judgment was entered in favor of the plaintiff and against William C. Barnett, garnishee. On August 3, the...
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