McEvoy ex rel. Nelson v. Lane

• Decision Date: 31 January 1845
• Citation: 9 Mo. 48
• Parties: MCEVOY, TO THE USE OF NELSON, v. LANE AND MCCABE, GARNISHEES.
• Court: Missouri Supreme Court

9 Mo. 48

MCEVOY, TO THE USE OF NELSON,

v.LANE AND MCCABE, GARNISHEES.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

TOMPKINS, J.

John McEvoy, suing to the use of Nelson, obtained a judgment against Henry H. Wright and Christian M. Leggett, in the St. Louis Court of Common Pleas. Hardage Lane and Edmund McCabe, were summoned as garnishees. They denied all indebtedness to Christian Leggett, one of the above defendants, and the court finding such answer to be true, gave judgment for the garnishees, Lane & McCabe. A new trial was moved for all the common reasons, and refused.

On the trial of the cause, McEvoy gave in evidence a judgment obtained by one Moore and Christian M. Leggett, suing for the use of Leggett against Hardage Lane and Edmund H. McCabe, dated 17th October, 1842. The judgment was obtained first before a justice of the peace, and afterwards on appeal to the Court of Common Pleas, on the 5th May, 1843. The judgment in the present case was given by the Court of Common Pleas against McEvoy, in favor of Lane and McCabe, on the 8th May, 1843.

No instructions or decisions of points of law were required by the Court of Common Pleas, and consequently it does not appear on record for what reason that court decided against the appellee.^(a) In the case of Knapp and Shea,^(b) decided at the last July term of this court, it was stated as the opinion of the court, that the answer of the garnishees was admissible in evidence in their behalf. The Court of Common Pleas did not then decide in favor of the garnishees without evidence. The court might not have believed in the identity of the parties. It was left to decide as well the law of the case as the credit due to the evidence. No instructions being asked, the judgment of the court will be affirmed.

(a). See post p. 355.

(b). See 8 Mo. R. 657. The answer is not governed by the rules of technical pleading--Ashby v. Watson, 9 Mo. R. 238. The answer may be disproved by evidence of garnishee's declaration prior to his answer-- Stevens v. Gwathmey, 9 Mo. R. 628. Answer presumed to be true-- Quarles v. Porter, 12 Mo. R. 76. Denial of answer need not be verified-- Stewart v. Anderson, 18 Mo. R. 82; Briggs v. Block, 18 Mo. R. 281. Where answer not traversed, it is taken as true--McCause v. McClure, 38 Mo. R. 410.