Ladd, Patrick & Co. v. Couzins

• Citation: 35 Mo. 513
• Parties: LADD, PATRICK & CO., Appellants, v. JOHN E. D. COUZINS, Respondent.
• Decision Date: 30 June 1865
• Court: United States State Supreme Court of Missouri

35 Mo. 513

LADD, PATRICK & CO., Appellants,

v.JOHN E. D. COUZINS, Respondent.

Supreme Court of Missouri.

June Term, 1865.

Appeal from St. Louis Circuit Court.

Partridge & Currier, for appellants.

I. The judgment of the court below does not follow the pleadings, and is therefore irregular. The only issue made in the pleadings was between the plaintiffs and the interpleader, in respect to which the court renders no judgment. There was no issue on the pleadings between the plaintiffs and the garnishee, but the court rendered judgment in favor of the garnishee, whereas the judgment should have been for the plaintiffs, for want of a replication to their denial and allegation. (R. C. 1855, p. 258, § 69 et seq.; Rules of Circuit Court, Rule 21.)

II. The court erred in admitting the declarations of Walton. He was not a party to the record and was a competent witness. His statements out of court were mere hearsay. They are not admissible as a part of the res gestæ, since they were distant both in time and place from the transaction imputed to him, to wit, the fraud in the wood contract. They were independent of each other, separate and distinct, as much so as they would have been had ten years intervened. (1 Greenl. Ev. 122, §§ 110, 111.)

J. O. Broadhead, for respondent.

WAGNER, Judge, delivered the opinion of the court.

This was a case of garnishment on mesne process. Judgment was duly obtained against the principal debtors, in the court below, and the respondent was summoned to appear to answer such interrogatories as might be exhibited against him by the plaintiffs, (appellants here,) touching his indebtedness to the defendants in the original cause.

Interrogatories were duly filed against the respondent, who answered, denying any indebtedness whatever to the principal debtors, or that he had in his possession or under his control any property, money, or effects, belonging to them, or in which they had any interest.

The appellants traversed the respondent's answer, and alleged that he had, at the time he was summoned as garnishee in this cause, in his possession, custody and control, two thousand dollars in money belonging to Walton (one of the principal debtors), and in which he had then an interest; and that he also owed the said Walton the further sum of two thousand dollars.

To these allegations respondent made no reply till after judgment was rendered and an appeal taken to this court. The court then permitted him to file his reply nunc pro tunc.

Subsequent to the filing of the interrogatories and the answer on the garnishment, the United States, by their attorney, interpleaded for the fund alleged to be in the hands of the respondent as garnishee, claiming the same to be the property of the United States, and denying that said Walton ad any interest therein. This claim and interpleader the appellants denied.

Whilst the issue between the appellants and interpleader was still pending, the court admitted in evidence the declarations of Walton, made a considerable length of time after he had acquired the money, as to the mode in which he obtained it. The trial was before the court, both parties waiving a jury. The only testimony having any material bearing on the question was the declarations of Walton, to the admitting of which the appellants duly excepted.

At the conclusion of the trial the court gave several instructions at the instance of the respondent, chiefly predicated on said declarations, and then rendered judgment in his behalf without disposing of the issue made up between the appellants and the interpleader. Exceptions at the time were taken to the ruling of the court in giving said instructions, and also a motion filed for a new trial; which being overruled, the appellants again excepted, and now bring the case here by appeal.

Several instructions were offered by the appellants and refused, but, from the view we have taken of the case, we do not deem it necessary to notice them now.

It is contended that the court erred in permitting respondent to file his reply to appellants' denial after judgment.

Our Practice Act is very liberal, in furtherance of justice, in allowing amendments to be made, and the pleadings to be conformed to the...