Kiernan v. Robertson
| Decision Date | 05 February 1906 |
| Parties | R. E. KIERNAN, Jr., Defendant in Error, v. IKE ROBERTSON, Sr., Defendant; W. H. ALEXANDER, Garnishee, Plaintiff in Error |
| Court | Kansas Court of Appeals |
Error to Randolph Circuit Court.--Hon. Alex. H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
Jno. N Hamilton for plaintiff in error.
(1) The denial stands in the place of the petition in an ordinary action, and must contain all the requisites of a petition. Stevenson v. McFarland, 162 Mo. 159, 168; McPherson v. Railroad, 66 Mo. 103, 111; Provenchere v. Reifess, 62 Mo.App. 50; R. S. 1899 sec. 3451. (2) The denial must contain all the averments, and must state all the facts, which would be essential to a good petition by the defendant in an action against the garnishee. See cases cited above; also Holker v. Hennessey, 141 Mo. 527, 535; Brown v. Cape Girardeau, 90 Mo. 377 383; Hax v. Cement Co., 82 Mo.App. 447, 451. (3) The denial of the plaintiff to the answer of the garnishee in this case does not state facts sufficient to constitute a cause of action. It states only a conclusion of law. 4 Enc. of Plead. and Prac., p. 612; 12 Id., pp. 1021, 1024 and 1042; Pier v. Heinrichoffen, 52 Mo. 333, 336; Knapp v. St. Louis, 156 Mo. 343, 353; Bank v. Tiger Tail M. & L. Co., 152 Mo. 145, 157; Chem. Works v. Nemnick, 169 Mo. 388, 397; Brown v. Gummersell, 30 Mo.App. 341, 345; McKyring v. Bull, 16 N.Y. 297, 303; Lienan v. Lincoln, 2 Duer. 670; Pelton v. Bemis, 44 Oh. St. 51, 58; Wells v. McPike, 21 Cal. 215; Doyle v. Ins. Co., 44 Cal. 264, 268. (4) Since the denial does not show a right of action in the defendant against the garnishee, the judgment herein is no protection to the garnishee, and the garnishee could not plead it in bar to an action by the defendant. For the denial must show a liability on the part of the garnishee to the execution defendant. Funkhouser v. Eveland, 3 Mo.App. 602; McPherson v. Railroad, 66 Mo. 103; Provenchere v. Reifess, 62 Mo.App. 50; Hauptman v. Whittle, 85 Mo.App. 188, 191; Belshe v. Lamp, 91 Mo.App. 477. (5) The demurrers to the evidence, both that offered at the close of the plaintiff's case and that offered at the close of the whole case, should have been granted, and were improperly overruled. (6) The court below erred in admitting in evidence the final settlement and the petition for an order of distribution, since there was nothing in the pleadings to warrant their introduction.
Joella Ellington and Aubrey Hammett for defendant in error.
(1) None of plaintiff's authorities on the sufficiency of the denial are in point. The case cited, 62 Mo.App. 50, being on question of agency, 82 Mo.App. 447, on assignment of wages consideration evidenced by note, 30 Mo.App. 341, being the only garnishment case cited, in which the denial was simply a general denial of garnishee's answer without stating any grounds for recovery, 3 Mo.App. 602, is an action for damages, 85 Mo.App. 188, a justice case without service, 91 Mo.App. 477, justice case on point of jurisdiction, 152 Mo.App. 145, case in trover, 50 Mo.App. 332, suit on contract, 154 Mo. 204, suit over a sale, contract. (2) Denial was sufficient; certainly so when considered together with the reply of garnishee, return of sheriff and other pleadings in the case. Swartz v. Riner, 66 Mo.App. 476, and cases cited. Denial was sufficient because it stated the only substantive fact, i. e. that garnishee as stakeholder held the stake. 126 Mo. 81; 149 Mo. 143, 146; 46 Mo. 47. (3). In any event it is good after verdict. Frazier v. Roberts, 32 Mo. 461 and cases cited. 62 Mo.App. 42; 19 Mo. 252; 156 Mo. 514; 163 Mo. 342.
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, 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 it had expired; all debts and charges had been paid, final settlement had been filed and approved and the administrator had applied for and obtained an order of distribution from the probate court, in which he was directed to pay fifty-seven dollars to defendant as a distributee. The garnishee was served with notice of garnishment immediately after this order was made.
The garnishee testified that before the occurrence of these proceedings in the probate court a Mr. Hamilton, another creditor of defendant, presented to him a written order signed by defendant directing the payment to Hamilton of the amount of defendant's share in the money to be distributed and requested and obtained the acceptance of the order, and that very soon after the service of garnishment the garnishee paid the fifty-seven dollars due defendant to Hamilton. In the instructions given, the court told the jury to return a verdict for the garnishee if they believed in the existence of these defensive facts, but the jury rejected them in giving plaintiff the verdict. The garnishee complains of the action of the trial court in refusing his request for an instruction in the nature of a demurrer to the evidence and presents several questions for our determination.
First he contends that the denial is fatally deficient in omitting from its allegations facts constitutive of the cause of action pleaded. The garnishee made no attack upon this...
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