Marmaduke v. McMasters

• Decision Date: 31 October 1856
• Citation: 24 Mo. 51
• Parties: MARMADUKE, Respondent, v. MCMASTERS et al., Appellants
• Court: Missouri Supreme Court

24 Mo. 51

MARMADUKE, Respondent,

v.MCMASTERS et al., Appellants

Supreme Court of Missouri.

October Term, 1856.

1. Where a cause is tried by the court without a jury, there should be a finding of the facts by the court.

2. Quere, whether a garnishee who fails to set up in his answer as a defense to the garnishment the fact of a previous assignment of the debt by the defendant in the attachment, for the reason that he had no notice of such assignment, is entitled to relief against a judgment against himself for the debt in favor of the plaintiff in the attachment.

Appeal from Hannibal Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Wm. M. Cooke, for appellants.

Richmond, for respondent.LEONARD, Judge, delivered the opinion of the court.

This was a petition by a garnishee for relief by injunction against a judgment recovered against him, in favor of an execution plaintiff, upon the ground that the note, by virtue of which his indebtedness existed, had been transferred before the garnishment, and that, having no notice of the fact, he had failed to rely upon it in his answer. The assignee is a party to the suit, and, on a trial before the court, the judgment against the garnishee was perpetually enjoined, and the present plaintiff decreed to pay the money to the assignee; but there is no finding of the facts, and for this reason the judgment must be reversed and the cause remanded.

We had occasion in the recent case of Funkhouser and others v. How (see, 24 Mo. 44) to consider the rights and liabilities of attaching creditors in a case somewhat similar to the present, and a majority of the court then held that the attaching creditor had a right to retain the money recovered in good faith against the garnishee, and paid over to him, against an assignee, although he had notice during the pendency of the suit of the alleged assignment. The decision was confined to the facts of the case, and it is to be observed, as already stated, that the money had been paid over pursuant to the sentence, and the garnishee, at the time he answered, had notice of the assigment, and failed to rely upon it in his defense. In the present case the garnishee himself seeks to be relieved against the recovery, on the alleged ground of his ignorance of the assignment and consequent failure to set it up in answer to the garnishment. Judge Tucker, in his Commentaries (2 vol. 101), maintains that it is the duty of the garnishee, if he have notice at any...