Kingsley v. Missouri Fire Co.

• Decision Date: 31 March 1851
• Parties: KINGSLEY v. MISSOURI FIRE COMPANY.
• Court: Missouri Supreme Court

14 Mo. 465

KINGSLEY

v.MISSOURI FIRE COMPANY.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

On the 13th of January, 1847, John Kingsley brought suit on a note executed by Ross & Cowie, a co-partnership firm composed of Joseph Ross and James Cowie, dated May 15, 1846, against said James Cowie, by attachment, in the St. Louis Circuit Court, and on the same day the Missouri Fire Company was summoned as garnishee. At the April term of said court (1847). to-wit: On the 21st of April, said plaintiff filed allegations and interrogatories for said garnishee to answer, and on the 26th of said April, said plaintiff, by leave of court, filed a statement of the grounds on which he requires the said garnishee to answer, which grounds are for work and labor done and performed for the said garnishee, by the said Joseph Ross, while they were co-partners in trade, doing business under the name and style of Ross & Cowie-- that after the work and labor aforesaid were done and performed, the said Joseph Ross bargained, sold, transferred and conveyed all his right, title, interest and claim of every kind and nature whatever, of, in and about said business, to said James Cowie, and said co-partnership was then dissolved and annulled, with the understanding that the said Cowie was to assume and pay all the debts of the concern, and was to collect, receive and use all debts due said co-partnership to his own proper use and benefit. At the November term, 1847, to-wit: On the 15th of November, a judgment by default was rendered against said garnishee. At the November term, 1849, to-wit: On the 15th January, 1850, a judgment was rendered in the original suit of John Kingsley v. James Cowie in favor of plaintiff for $61. On the 22nd January, 1850, the assessment of damages came on to be heard against said garnishee, when the plaintiff read in evidence the record and proceedings in the original suit, and then offered to prove the amount that said garnishee owed the said firm of Ross & Cowie, for work and labor done and performed, and which had never been paid, which evidence the court rejected; and also, said plaintiff offered to read in evidence the notice of the dissolution of the co-partnership of Ross & Cowie, a firm composed of Joseph Ross and James Cowie, which note was signed by said Joseph Ross and James Cowie, and stated that said co-partnership, existing between them, was dissolved on the 15th of July, 1846, and that said Cowie, only, was authorized to settle the accounts of said firm, and which notice was published several times in the latter part of July, 1846, in the daily ““Missouri Republican,” a newspaper published in the city of St. Louis, which the court refused to let him do. The court instructed the jury to find nominal damages for the plaintiff against said garnishee. On the 24th of January, 1850, the plaintiff filed a motion to set aside the assessment of damages, and to grant a new writ of inquiry, which motion the court overruled. It is further stated--that the suit was against James Cowie alone, without any averment that it was upon a claim against Ross & Cowie as co-partners. The Missouri Fire Company was summoned as garnishee to answer for any property in its hands belonging to said Cowie, and for any indebtedness of it to said Cowie, without mention of partnership, or joint property of a partnership, or joint indebtedness to Ross & Cowie. The allegations and interrogations filed allege and interrogate only as to property of Cowie alone, and indebtedness to Cowie alone. To the above statement of the case by appellant the appellee assents as correct, so far as it goes, but adds the foregoing thereto, as needful for a full and sufficient statement.

LACKLAND & JAMISON, for Appellant. The Circuit Court erred, 1st. In not permitting the plaintiff to prove the amount which said garnishee owed Ross & Cowie. 2nd. In rejecting the evidence that the co-partnership firm of Ross & Cowie was dissolved and that James Cowie was the only one authorized to settle and wind up the co-partnership of which the said garnishee had notice.

I. That in executing a writ of inquiry, as the defendant admits that the plaintiff has a cause of action by suffering judgment by default, all the plaintiff has to prove, or the defendant will be allowed to dispute, is the amount of the damages. 4 Humph. R. 328; 4 Monroe, 11, Waggoner v. The Bells; 1 Phillips' Ev. p. 482, 6th Am. ed; Cowen & Hill's notes, part 3, p. 630, notes 331, 332; 1 Bos. & Pull. 368; 1 Phil. Ev. 186, 4th ed., Cowen & Hill's notes, 1st part, 4th ed. p. 466, notes 355, 356.

II. The statement of the grounds on which the garnishee is required to answer, stands in lieu of a declaration, and the garnishee by permitting judgment by default, admits all the material, substantial and transferable facts alleged in the said statement. Acts of 1846-7, pp. 3, 9; 4 Litt. R. 149, Bernard v. Commonwealth; 5 Wend. R. 134, Bates v. Loomis. The material, substantial, and traversible facts which are admitted by the default, are, that work and labor was done and performed by Joseph Ross and James Cowie, while they were in co-partnership doing business under the name and style of Ross & Cowie, for the said garnishee. That after said work was done, the said firm dissolved (a notice of which was published in a public journal in the city of St. Louis, where all the parties resided). That said Cowie purchased of said Ross his interest in said concern, and assumed to pay all the debts of said firm; and these facts being admitted, the said garnishee owed said Cowie for the full amount of work done by said Ross & Cowie, which is subject to attachment. See Rev. Stat. 1845, p. 137, art. 1, under Attachment, § 12. clause 5, which says, all debts due from...