Ladd, Patrick & Co. v. Couzins

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWAGNER
Citation35 Mo. 513
PartiesLADD, PATRICK & CO., Appellants, v. JOHN E. D. COUZINS, Respondent.
Decision Date30 June 1865

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

[35 Mo. 514]

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.

[35 Mo. 515]

Subsequent to the filing of the interrogatories and the answer on the garnishment, the...

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20 practice notes
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill v. Meek, 20 Mo 358; State ex rel. Manning v. Hughes, 351 Mo. 780, 174 S.W. (2d) 200; Reed v. Bright, 232 Mo. 399, 134 S.W. 653. (2) The j......
  • Niedringhaus v. Wm. F. Niedringhaus Inv. Co., No. 22446.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 1932
    ...decisions of this and the appellate courts of this state, contain similar expressions: Brill v. Meek, 20 Mo. 358; Ladd et al. v. Couzins, 35 Mo. 513; Reed v. Bright, 232 Mo. 399, 134 S. W. 653; Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303; Finley v. United Rys. Co., 238 Mo. 6, 141 S. W. 8......
  • Shaw v. Shaw
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1885
    ...the court had lost jurisdiction by granting the appeal. A new paper cannot be filed in the case after an appeal is taken ( Ladd v. Couzins, 35 Mo. 513, 515; Stewart v. Stringer, 41 Mo. 400), and the power of the inferior court over the subject is exhausted. Bril v. Meek, 20 Mo. 358. T. F. M......
  • State v. Arnold, No. 27516.
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1927
    ...no supersedeas of the judgment, and pending the appeal the circuit court can make no order vacating the judgment (citing Ladd v. Couzins, 35 Mo. 513; De Kalb County v. Hixon, 44 Mo. 341). To the same effect is Oberkoetter v. Luebbering, 4 Mo. App. 481. The judgment herein appealed from, to ......
  • Request a trial to view additional results
20 cases
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill v. Meek, 20 Mo 358; State ex rel. Manning v. Hughes, 351 Mo. 780, 174 S.W. (2d) 200; Reed v. Bright, 232 Mo. 399, 134 S.W. 653. (2) The j......
  • Niedringhaus v. Wm. F. Niedringhaus Inv. Co., No. 22446.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 1932
    ...decisions of this and the appellate courts of this state, contain similar expressions: Brill v. Meek, 20 Mo. 358; Ladd et al. v. Couzins, 35 Mo. 513; Reed v. Bright, 232 Mo. 399, 134 S. W. 653; Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303; Finley v. United Rys. Co., 238 Mo. 6, 141 S. W. 8......
  • Shaw v. Shaw
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1885
    ...the court had lost jurisdiction by granting the appeal. A new paper cannot be filed in the case after an appeal is taken ( Ladd v. Couzins, 35 Mo. 513, 515; Stewart v. Stringer, 41 Mo. 400), and the power of the inferior court over the subject is exhausted. Bril v. Meek, 20 Mo. 358. T. F. M......
  • State v. Arnold, No. 27516.
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1927
    ...no supersedeas of the judgment, and pending the appeal the circuit court can make no order vacating the judgment (citing Ladd v. Couzins, 35 Mo. 513; De Kalb County v. Hixon, 44 Mo. 341). To the same effect is Oberkoetter v. Luebbering, 4 Mo. App. 481. The judgment herein appealed from, to ......
  • Request a trial to view additional results

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