Oliver v. Fisher
| Decision Date | 07 June 1968 |
| Docket Number | No. 8652,8652 |
| Citation | 430 S.W.2d 611 |
| Parties | Dearmont OLIVER, Appellant, v. R. L. FISHER and Helen Pikey Fisher, Defendants, Van H. Sharp, Jr., Circuit Clerk, Garnishee-Respondent. |
| Court | Missouri Court of Appeals |
T. B. Russell, Joslyn & Joslyn, Charleston, for appellant.
George K. Reeves, Ward & Reeves, Caruthersville, for respondent.
This case involves another aspect of the transaction we considered in Fisher v. Mikco Grain Co., Mo.App., 404 S.W.2d 752, though it is not a second appeal on the same issues. It was stipulated, however, that the trial court might consider and decide this case, which is a garnishment proceeding, on the transcript of the record in the earlier case. Since the record of proceedings in the other case was put in evidence here, we can and do take the other transcript into account in deciding the merits of this appeal. See Paridy v. Caterpillar Tractor Co., 7 Cir., 48 F.2d 166, 168--169[2, 3].
On January 31, 1964, Mr. Fisher and his wife entered into a written agreement, styled a 'Rent Contract' with Justa Investments, a corporation. This agreement provided, among other things, that Justa 'has this day rented' 640 acres of land in New Madrid County, describing it, to Fisher and his wife; that all of the land was to be planted in wheat for the crop year 1964, and that upon delivery of the crop to a point designated by Justa (and compliance with certain other requirements) the rent was to be 'one-third of all wheat combined, delivered at no expense to Landlord.' It was further provided that Justa was to have a lien on all crops produced by the tenant 'for money advanced, damages, cash rent or otherwise.'
Mr. Fisher put his crop in and contracted to sell it to Mikco Grain Company of Cairo, Illinois. Then on April 24, 1964, Mr. Fisher mortgaged the entire crop to Simmons Equipment Company, of Charleston, Missouri to secure what was described as 'a past due open account, and parts account, and monies that Mr. Fisher owed [Simmons] for the past two years.' It was stipulated that the Simmons mortgage was filed as required by Section 443.450, RSMo (1959), V.A.M.S., but that the 'Rent Contract' was neither filed nor recorded.
In June 1964, the wheat was harvested and delivered to Mikco at its river port at Linda, Missouri. It was stipulated that the wheat was delivered between June 11 and June 16, 1964. Mikco withheld some of the money for advances and paid the remainder with drafts or checks. Though the record is not entirely clear, there were apparently three checks, all of which were delivered to a Mr. Richardson, Justa's president. One of the checks was made payable solely to Justa; it represented one-third of the wheat crop, and Justa kept it as rent. The other two checks, one for $9,223.43 and another for $157.71, were drawn and delivered on June 20 and June 23. The record inference is that these two checks were delivered to Justa at the river port on the dates of issue, but for reasons not apparent of record they were made payable to Fisher, Justa and Simmons.
On July 15, 1964, Justa and Fisher, as joint plaintiffs, filed suit in the Circuit Court of New Madrid County, setting up in their petition that Justa had advanced large sums to Fisher for planting, cultivation, production and harvesting of the wheat crop; that the last two drafts should have been made payable solely to Justa, but that Mikco had insisted on making the drafts payable to Fisher, Justa and Simmons. The prayer of this petition was for judgment against Mikco in the amount of the last two drafts. Mikco filed an answer alleging that Justa claimed all of the proceeds from the sale of the wheat, but that Simmons also claimed part of the money by reason of its crop mortgage. Mikco prayed that the claimants to the funds represented by its drafts issued on June 20 and 23 be required to interplead, and that it be allowed to pay the sums of $9,223.43 and $157.71 into the registry of the court and be discharged. On October 13, 1964, the trial court ordered that the money be paid into the registry of the court and that the various claimants interplead. Simmons set up its claim by a cross-claim in the nature of an interplea, and on July 13, 1965, after trial to the court, Simmons had judgment against Fisher and Justa for $3,169.92, which included interest and attorney's fee. This judgment was appealed, solely on the ground that Simmons' mortgage did not create a lien on the wheat because the crop was not sufficiently described. As against this claim of error, we affirmed the judgment. Fisher v. Mikco Grain Co., supra, 404 S.W.2d 752.
On April 27, 1965, Mr. Oliver, the garnisher and appellant in this proceeding, obtained a judgment against Mr. Fisher and his wife in the amount of $1,992.80, and on some unspecified date, presumably a short time after the judgment was entered, sued out a general execution. In aid of this execution, Mr. Oliver summoned Mr. Sharp, in his capacity as clerk of the Circuit Court of New Madrid County, as garnishee. In response to interrogatories, Mr. Sharp answered that at the time he was summoned as garnishee, he had in his possession and deposited in the registry of the circuit court the sum of $9,381.14, which had been paid in by Mikco in the interpleader action. This answer was denied, the denial traversed by reply, and the issues thus tendered were tried to the court on November 7, 1966. The trial court found the issues generally for the garnishee, and further found that the funds in Mr. Sharp's possession, after payment of the Simmons' judgment belonged solely to Justa. The garnisher has appealed. He makes two points in this court: (1) that the provision in the 'Rent Contract' creating Justa's lien for advances had no more standing than an unfiled chattel mortgage, and Oliver was entitled to priority as a judgment creditor; and (2) that ownership of the wheat crop and the proceeds of the sale was vested in R. L. Fisher and therefore the fund in the hands of the circuit clerk was subject to garnishment. The respondent counters by saying that the fund in the hands of the circuit clerk was immune to garnishment because it was property in custody of the law.
We have considered the various points made and the authorities cited by the parties, but for the purposes of this opinion we need not discuss them all in detail. What the garnisher lays claim to is the balance remaining on deposit with the clerk after Simmons' judgment was satisfied, and the issue is whether the record supports a finding that Justa had the paramount claim to that money. We must in candor say that, even considering both transcripts, the record is vague, ambiguous and even obscure in several respects; however, it is our duty to dispose finally of a case before us on appeal, if possible, Rule 83.13(c), V.A.M.R.; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120, and we consider the factual detail before us, and the reasonable inferences therefrom sufficient for that purpose. We would also reiterate that in this court-tried case, the reasons the trial court may have had in mind when he decided the case are not determinative, if the judgment is correct on any theory, City of St. Louis v. Evans, Mo., 337 S.W.2d 948, 954; Brown v. Montgomery, 354 Mo. 1041, 1050--1051, 193 S.W.2d 23, 27, and though we review the case de novo, we must affirm the judgment unless it is clearly erroneous. Rule 73.01(d), V.A.M.R.
Preliminarily, we should note two matters and set them to one side. First, we accord considerable respect to respondent Sharp's contention that the fund on deposit was in custody of the law and could not be subjected to garnishment. As a general rule, funds deposited in court to await the outcome of litigation are immune from garnishment by creditors, but that may not always be true if it has been judicially determined to whom the funds belong. Anno., 1 A.L.R.3d 936, 938--942, §§ 2, 3 (1965). The sequence of...
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...to the applicability of the Second Offender Act where there is sufficient evidence in the record on that issue. See also Oliver v. Fisher, 430 S.W.2d 611 (Mo.App.1968), holding that the reasons which the court had in mind when the case was decided are not determinative if the judgment was c......
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