Lee v. Tabor

• Decision Date: 31 July 1843
• Parties: LEE AND OTHERS v. TABOR AND WATSON, GARNISHEES OF AUSTIN.
• Court: Missouri Supreme Court

8 Mo. 322

LEE AND OTHERS

v.TABOR AND WATSON, GARNISHEES OF AUSTIN.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO THE ST. LOUIS COURT OF COMMON PLEAS.

POLK and CARROLL, for Plaintiff. 1. The allegation being that the deed was fraudulent, it was equally competent for a court of law or a court of equity to entertain it; the object being not to vary or contradict the deed as such, but to disprove its legal existence, and rebut its operation. 3 Blacks. Com. 443; Bright v. Eynon, 1 Burr, 396; Pemberton v. Staples, 6 Mo. R. 59; 3 Starkie's Ev., 1017, note L.; ibid. 1015, 1016; ibid. 1294, note E. 2. One partner cannot make a general assignment of the partnership effects, so as to bind the other. Hughes v. Ellison, 5 Mo. R. 466. 3. The case decided in this court, reported in 7 Mo. R. Van Winkle and Randall v. McKee and Baum, was the case of a fieri facias, and our statute on executions authorizes only “debtors of the defendant” to be summoned. This, on the other hand, is a case of original attachment. 4. The law of attachments, as it now stands in this State, by the act of February 13, 1839, expressly authorizes the creditor to sue by attachment, where an affidavit is made that there is good reason to believe that the defendant or debtor “has fraudulently conveyed, assigned,” &c., “any of his property or effects, so as to defraud, hinder, or delay his creditors;” and how is the truth of this affidavit to be tried (a thing also authorized to be done), if a deed cannot be assailed for fraud? See Laws of Mo. 1838-9, chapter Attachment, § 1. 5. The seventh section of the act of 1835, on the subject of attachment, provides, not only that all persons may be summoned as garnishees who are named in the writ, and all others who are debtors of the defendant, but also, all “such as the plaintiff or his attorney shall direct,” thereby designing, very obviously, to comprehend others beside debtors. See Laws of Mo. 1835, art. 1, § 7, of the law to “Provide for the Recovery of Debts by Attachment;” so that it is not necessary that the garnishee should be a debtor of the defendant, in order to make him answerable under an attachment. 6. The proceedings under our attachment law are somewhat in the nature of proceedings in equity; inasmuch as the appeal, both on the part of the plaintiff and the garnishees. is to the conscience of the party.

SPALDING and TIFFANY, for Defendants. 1. The burden was on plaintiffs to prove effects in hands of garnishees, as they denied any, which they failed to do. 3 Mo. R. 88. 2. The deeds of assignment are not on the face of them fraudulent or void, and, therefore, the answers cannot be held as admitting indebtedness or effects. 3 Mo. R. 252. 3. Even were the deeds of assignment void as to creditors, from containing provisions contrary to public policy or law, yet the fund cannot be reached in this way, but only by bill in chancery. 7 Mo. R. 435, Van Winkle et al. v. McKee. Savage was dead when the attachment was brought, as the declaration shows. The deed of assignment was undoubtedly good as to Austin, the survivor, at any rate; and Savage's interest, he being dead, is not liable. The denial of the answer says, that the deeds of assignment were illegal and void, and the burden was on the plaintiffs to show it.

SCOTT, J.

Tabor and Watson were summoned as garnishees in a suit commenced by attachment, against William J. Austin. In answer to interrogatories filed, Tabor and Watson, the garnishees, stated they had and have no property or effects of the defendant in their possession, and are not and were not indebted to them. They also stated, that they were assignees under a deed of assignment made to them by Savage & Austin (of...