M'Garry v. Lewis Coal Co.

• Decision Date: 28 November 1887
• Citation: 6 S.W. 81,93 Mo. 237
• Parties: McGARRY v. LEWIS COAL CO.
• Court: Missouri Supreme Court

6 S.W. 81

93 Mo. 237

McGARRY v. LEWIS COAL CO.

Supreme Court of Missouri.

November 28, 1887.

GARNISHMENT — JUDGMENT AGAINST GARNISHEE — EFFECT — BONA FIDE PURCHASER.

Plaintiff was the assignee of a judgment against a garnishee, who was found by the referee in the garnishment proceedings to have in his possession a certain steamer subject to the garnishment proceedings. Defendant obtained possession of the steamer from the garnishee, without notice or knowledge, so far as shown by the complaint, of the garnishment. Plaintiff's action was for the conversion of the steamer. Held, that the judgment was not a lien upon the specific article in the garnishee's possession, and a demurrer to the complaint should be sustained.

Appeal from St. Louis city circuit court; GEORGE W. LUBKE, Judge.

Martin, Laughlin & Kern, for appellant. Givan Campbell, for respondent.

RAY, J.

This is an action by plaintiff against defendant for damages in the sum of $5,000 for the conversion of a steam-tug called "The Alice Parker." A general demurrer was sustained to the petition, and final judgment entered thereon in favor of the defendant, from which plaintiff has appealed. The petition charges, substantially, that on the seventh of March, 1877, judgment against Thomas Parker was rendered in the St. Louis circuit court in favor of Henry D. Laughlin, in the sum of $2,250, and interest and costs; that on the nineteeenth of September, 1878, said judgment was assigned to the plaintiff for value; that on the eighteenth of January, 1879, an alias execution was sued out in due form of law, returnable to the February term, 1879, and delivered to the sheriff of the city of St. Louis; that under direction of plaintiff, the sheriff, in due form of law, summoned one Thomas Parker, Jr., as garnishee of Thomas Parker, defendant in the execution; that in obedience to the summons, said garnishee appeared at the return-term of the writ to answer interrogatories relating to his indebtedness to the defendant in the execution; that the sheriff at the same time did declare, in writing, to said garnishee, of which he made full return, that he attached in his hands, and summoned him as garnishee concerning, any goods, chattels, moneys, or evidences of debt which he might have belonging to said judgment debtor; that interrogatories were exhibited, and that said garnishee in his answer did not truly answer as to property and effects in his hands; that plaintiff in his reply to said answer alleged that said garnishee had in his possession, and under his control, the steam-tug called "The Alice Parker," and that said tug was the property of the defendant in said execution, and that it was of the value of $3,500; that the issues raised in said garnishment proceedings were referred to John A. Harrison, Esq., as referee, to try the issues, and report to the court his findings and decision; that, upon the pleadings and proof submitted by both sides, the said referee made his report, and filed the same on the first of November, 1883; that in his said report said referee found in favor of plaintiff and against said garnishee, to the effect that at the service of said garnishment said garnishee had in his possession said tug, and that it was the property of Thomas Parker, defendant to this execution; that said report was confirmed by the court, and that the court, on the eighteenth day of January, 1884, made and entered an order on said garnishee, requiring him to deliver said steam-tug to the sheriff on or before the first Monday in February, 1884; that on the twenty-ninth of January, 1884, said order was duly exhibited to said garnishee, and that he failed to comply with the same, or to deliver to the sheriff as commanded; that by reason of the premises plaintiff acquired a lien upon said steam-tug in the hands of said garnishee; that before his said lien was...