Kiernan v. Robertson

• Decision Date: 05 February 1906
• Citation: 92 S.W. 138,116 Mo. App. 56
• Parties: KIERNAN v. ROBERTSON (ALEXANDER, Garnishee).
• Court: Missouri Court of Appeals

92 S.W. 138

116 Mo. App. 56

KIERNAN v. ROBERTSON (ALEXANDER, Garnishee).

Kansas City Court of Appeals. Missouri.

February 5, 1906.

1. PLEADING — WAIVER OF DEFECTS—PLEADING TO MERITS.

The act of a garnishee in replying to the merits of plaintiff's denial of his answer, without attacking the same by demurrer or motion constitutes a waiver of all defects, except such as are so fundamental in character that they cannot be cured by verdict.

2. SAME—CONCLUSIONS OF PLEADER.

An allegation, in plaintiff's denial of the garnishee's answer, that the garnishee had in his possession and under his control a certain sum of money due defendant, was not subject to the objection of stating a conclusion of law, but was a proper statement of a conclusion of fact.

3. GARNISHMENT—PERSONS SUBJECT TO GARNISHMENT —ADMINISTRATORS.

Under Rev. St. 1899, § 3435, providing that no administrator shall be summoned as garnishee prior to an order of distribution, or for payment of legacies, or the allowance of a demand found to be due, and administrator is personally subject to garnishment process by a creditor of a distributee after the time has elapsed for the allowance of demands against the estate, and all debts and charges have been paid, and nothing remains to be done but to comply with the order of distribution.

4. EVIDENCE — DEFECTS IN PROOF — CURE BY ADMISSIONS.

In garnishment proceedings against an administrator, plaintiff's failure to prove by the best evidence that an order of distribution had been passed in the administration proceedings, was cured by the garnishee's admission of that fact while testifying as a witness.

Error to Circuit Court, Randolph County; A. H. Waller, Judge.

Action by R. E. Kiernan, Jr., against Ike Robertson, Sr., in which W. H. Alexander was made garnishee. There was a judgment for plaintiff, and the garnishee brings error. Affirmed.

Jno N. Hamilton, for plaintiff in error. Joella Ellington and Aubrey R. Hammett, for defendant in error.

JOHNSON, J.

Plaintiff, a judgment creditor of defendant Robertson, had execution issued, and caused Alexander to be summoned as garnishee. In due time, interrogatories were filed by plaintiff and answered by the garnishee, who stated that when served with process he was not indebted to the defendant and did not have in his possession nor under his control any money or property belonging to defendant. A denial of this answer was filed by plaintiff, the material allegations of which are, "that on the 17th day of August, 1903, said W. H. Alexander had in his possession and under his control $57 or thereabout in money coming to and due this defendant. Ike Robertson, Sr., and that when garnishment was served said garnishee had in his possession and under his control said $57 or thereabout in money. Plaintiff further avers that this garnishment is under a judgment from this court in January, 1903, upon execution for same and costs." The reply of the garnishee was a general denial. Plaintiff recovered judgment, and the garnishee appealed.

The facts in evidence show that the garnishee, at the time of the service of the writ, was the administrator of an estate and had in his possession the sum of $403.58 for distribution among the distributees, of whom defendant was one. The affairs of the estate had been fully administered; time for filing demands against...