McConnell v. Story & Clark Piano Company
| Decision Date | 02 April 1918 |
| Citation | 202 S.W. 1065,199 Mo.App. 272 |
| Parties | D. B. McCONNELL, Respondent, v. STORY & CLARK PIANO COMPANY, a corporation, GARNISHEE OF WILLIAM P. RAMSDELL, Defendant, F. A. KILBER, Interpleader, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
AFFIRMED.
Judgment affirmed.
T. T Hinde and Taylor R. Young for appellant.
(1) Either under the Attachment or Garnishment Act a claimant may interplead. R. S. 1909, section 2345; R. S. section 2421. But since there seems to be some confusion as to whether or not a claimant may interplead under these sections in garnishment under execution, in the case at bar, upon motion of the plaintiff, the claimant was ordered by the court to interplead. As to a discussion of said confusion see the following decisions of this branch of our appellate court Schawacker v. Dempsey, 83 Mo.App. 342, p. 352; Good ex rel. v. Sleeth, 176 Mo.App. 619, pp. 631-3. (2) Both under our Attachment and Garnishment Acts costs may be adjudged in favor of a successful interpleader. R. S 1909, sections 2346, 2422. (3) As to the right to recover costs, the garnishee and interpleader in either attachment or garnishment are placed on the same footing. R. S. 1909, sections 2300, 2303; State ex rel. v. Lumber Co., 70 Mo.App. 663, p. 666; State ex rel. v. Pittman, 131 Mo.App. 299, p. 303. (4) Expressly by statute when judgment goes against the plaintiff, the garnishee may recover his expenses, including a reasonable attorney's fee. R. S. 1909, section 2436. And this section applies in garnishment under execution, although not expressly warranted by the statute. R. S. 1909, section 2414; O'Reiley v. Cleary, 8 Mo.App. 186, 192. (5) In the following cases the interpleader sued on the attachment bond and recovered his attorney's fees. State ex rel. v. Lumber Company, supra, p. 666; State ex rel. v. Silverstein & Co., 77 Mo.App. 304, 309. (6) In the O'Reiley case, supra, decided by this branch of our appellate court the garnishee recovered attorney's fees in garnishment on execution. This case has neither been overruled nor criticised, but, on the contrary, has been cited with approval in Norman v. Eastburn, 230 Mo. 168, see p. 184.
Frank J. Quinn for respondent; Durham & Durham (Of Counsel).
The sole error complained of by appellant, following the rules of this court is definitely set forth on page 4 of his brief, and is as follows: The court erred in declaring the law to be that a successful interpleader is not entitled to recover expenses, including attorney's fees, and that the court can confiscate an interpleader's claim and make him pay for the privilege of confiscation. A complete answer to such an assignment of error is made when it is said that the bill of exceptions does not contain any declarations of law on the part of the court, and unless preserved by a proper bill of exceptions they are no part of the record on appeal. Wellman v. St. Ry. Co., 219 Mo. 126. Neither does the bill of exceptions contain a motion for a new trial, nor a request for the clerk to set out any such motion for a new trial. In such case there is nothing for the appellate court to review, save only the record proper, and all matters of exception are waived. Groves v. Terry, 219 Mo. 595; 3 Corpus Juris, 960-963, and Missouri cases cited in note 79. If the action is not an independent action then the whole thing should have been preserved in a proper bill of exceptions, showing the motion, the testimony, the ruling and judgment, and an exception to same, and finally, when a final judgment had been rendered in the original cause, the whole matter should have been called to the court's attention anew in a motion for a new trial and such motion for a new trial, the ruling thereon and exceptions to such ruling all preserved and made a part of the record by a proper bill of exceptions. Bosley v. Parle, 35 Mo.App. 236; Mann v. Warner, 22 Mo.App. 577. The court could not render a judgment for the interpleader for his damages and attorney's fees (assuming that an interpleader might be entitled to such a judgment), after the term at which the judgment was rendered on the interplea and after an appeal had been granted to the other party. Ladd v. Couzins, 52 Mo. 454; Mann v. Warner, 22 Mo.App. 577. The record does not show a final judgment for the respondent or against the appellant on the motion for damages and attorney's fees. The so-called judgment as set out in the abstract (Abs., 23), is nothing more than a finding by the court, and if a judgment was entered on such finding the record does not disclose it. Such a mere finding will not support an appeal, unless followed by an actual entry of judgment. Rubey v. Shain, 51 Mo. 116; Sperling v. Stubblefield, 83 Mo.App. 266; 3 Corpus Juris, 612; Bick v. Umstattd, 137 Mo.App. 270. If the abstract is erroneous it is not the duty of the respondent to correct it, but the duty is on appellant to show to the court by a proper abstract of record facts necessary to overturn the judgment from which he appeals. Gooden v. Mod. Woodmen, 194 Mo.App. 666.
Appellant was interpleader below in a garnishment proceeding under execution, having been brought into the case on plaintiff's motion on the order of the trial court under authority of section 2439, Revised Statutes of Missouri, 1909.
At the close of the plaintiff's case on a hearing of the interplea before the court and a jury, plaintiff took an involuntary nonsuit with leave to set same aside, and judgment was accordingly rendered in favor of the interpleader and against the plaintiff. Thereafter plaintiff filed his motion to set aside the involuntary nonsuit and grant a new trial on the interplea. Said motion was overruled. In due...
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