Miller v. Richardson

• Decision Date: 31 May 1823
• Citation: 1 Mo. 310
• Court: Missouri Supreme Court
• Parties: MILLER & IRVINE v. RICHARDSON.

1 Mo. 310

MILLER & IRVINE

v.RICHARDSON.

Supreme Court of Missouri.

May Term, 1823.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

PETTIBONE, J.

This action was commenced by attachment, and Wm. G. Pettus summoned as garnishee. At the second term interrogatories to the garnishee were filed, which were answered in substance as follows: that Pettus, the garnishee, on the 9th of May, 1820, made his note, payable in twelve months, to Richardson and one John A. Smith, for $1180; that in the month of August following, he paid to Richardson $84, and took his receipt, executed in the name of Richardson and Smith; that on the 18th May, 1821, a judgment was entered against Pettus, in favor of Lynch and others, for the amount of a debt due by Richardson and one Vaughn, for $752 14, and $9 for the costs. That the balance of the said note is due to Richardson & Smith, after deducting the amount of the judgment above mentioned, and the $84; that he is also indebted to Richardson & Smith for the amount of an order drawn by one Jacob White, in favor of them on the said garnishee, for $170. Smith, the joint payce of the note and order, comes into court and by leave of the court interpleads that the money attached in Pettus' hands belongs to him. And thereupon the cause was continued until June term, 1823; at which term it appearing to the court that the garnishee in this case has no property in his hands of the defendant, and that no other property has been attached, it is ordered that the cause be dismissed at the costs of the plaintiff. From this decision or order the plaintiff appeals.

A bill of exceptions accompanies the record, which states that on the trial of the cause, the same facts appeared in evidence as are above set forth in the answer of the garnishee, and that Smith claimed the residue of the money due on said bond from Pettus, on the ground that Richardson had previously received more than his proportion of the same Plaintiff's counsel moved the court to instruct the jury on this point, that of the residue of the money in the hands of Pettus, at the time of the attachment, a moiety ought to be awarded to said plaintiff, if the plaintiff's demand amounted to so much, as being the property of Richardson, the residue of the money on said bond being due by said Pettus to Richardson and Smith jointly; which instructions the court refused to give. In this bill of exceptions, is the first and last we hear of the jury.

When, and for what purpose they were empannelled, we are...