People's Savings Bank v. Hoppe

• Decision Date: 29 June 1908
• Citation: 132 Mo. App. 449,111 S.W. 1190
• Parties: PEOPLE'S SAVINGS BANK v. HOPPE et al.
• Court: Missouri Court of Appeals

111 S.W. 1190

132 Mo. App. 449

PEOPLE'S SAVINGS BANK v. HOPPE et al.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

BILLS AND NOTES—PLEADING — VERIFICATION—DENIAL OF EXECUTION UNDER OATH.

The denial of execution under oath, which makes it necessary for plaintiff to prove execution of a note sued on, which by Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), "shall be adjudged confessed unless the party charged to have executed the same deny the execution thereof," is the denial and oath of the maker, and denial only by one sought to be charged as garnishee of defendant is not sufficient to exclude admission of the note in evidence without proof of execution.

2. DESCENT AND DISTRIBUTION—TITLE AND RIGHTS OF HEIRS AND ADMINISTRATOR — PERSONAL PROPERTY.

The title to personalty of an intestate is in the administrator, and, until proper ascertainment of a surplus after paying debts and costs of administration, an heir is not entitled to any part of it.

3. GARNISHMENT—INDEBTEDNESS TO PRINCIPAL DEBTOR—NECESSITY TO SUSTAIN JUDGMENT.

To sustain a judgment against a garnishee, it must be made to appear that he owes the principal debtor.

4. SAME—DEFENSES BY GARNISHEE.

The garnishee may interpose any defense against plaintiff that he could against defendant if the latter had sued him.

5. SAME—EQUITABLE GARNISHMENT—NATURE AND SCOPE OF REMEDY.

In equitable garnishment, as in legal process having a similar object in view, nothing more can be accomplished against the debtor of defendant than in a direct suit against the former by the latter.

6. SAME—METHOD OF REACHING FUNDS—EFFECT AS TO GARNISHEE'S STATUS AND DEFENSE.

The method used to reach the funds in the garnishee's hands cannot alter his status, nor enlarge or vary the grounds of his defense.

7. SAME — ANSWER OF GARNISHEE — ADMISSIONS — INDEBTEDNESS TO PRINCIPAL DEFENDANT.

A garnishee, by alleging that the principal defendant had assigned his share of an estate in the hands of the garnishee as administrator, and that he has paid the assignee before notice of the garnishment proceedings, admits the title of the principal defendant and his right to the immediate control of the funds in the garnishee's hands, and thereby concedes that nothing stands in the way of the distributee's title and right to his share save his having assigned it.

8. PLEADING—ANSWER—INCONSISTENT PLEAS.

The rule against a denial and confession and avoidance at the same time is no more than that inconsistent pleas must not be made to the same transaction, but the inconsistency should amount to incompatibility.

9. SAME—ADMISSIONS.

An allegation that the debt sought to be garnished was assigned before notice of the proceedings is not confessed by a pleading denying the assignment, and alleging that, if there was one, it was fraudulent, as the latter plea is not incompatible with the denial; and hence the rule against a denial and a confession and avoidance at the same time does not apply to affect such pleading.

10. GARNISHMENT—ISSUES BETWEEN PLAINTIFF AND GARNISHEE—ASSIGNMENT OF DEBT —BURDEN OF PROOF.

When an alleged assignment of a debt sought to be garnished was denied by plaintiff, who also alleged if the assignment was made it was fraudulent, the assignment does not stand admitted in the absence of evidence on the subject, for the denial put the onus on the garnishee to show that there was, in form at least, an assignment, and then the burden of proof would be shifted to plaintiff.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by the People's Savings Bank

against Fred H. Hoppe and others, aided by attachment. From a judgment for plaintiff, defendant Schmitz appeals. Reversed.

Kitt & Taylor, for appellant. Frank Sheetz & Sons, for respondent.

ELLISON, J.

August Hoppe died intestate in the state of Florida in February, 1904, leaving several children as his heirs. Two of these, defendants Fred and Louis, figure in this controversy. There was administration of the estate in Florida, and, deceased having $8,000 in this state, the defendant Schmitz was appointed administrator of the estate here, and took charge of the money. Defendant Fred owed two notes to the plaintiff bank, one for a balance of about $400 and the other for $700, each with interest. Fred was a nonresident of this state. Plaintiff brought this action, in equity, wherein it asked for judgment against defendant Fred for the amount of the notes, and that defendant administrator be restrained from paying to Fred any part of the money in his hands as administrator of the estate, "and for all such other judgments and decrees as may be right and proper in the premises." Plaintiff also sued out an attachment in aid. The trial court found that defendant Schmitz had $1,000 in his hands as administrator, and that it could be paid by him to plaintiff without any prejudice whatever, and that the deceased left no debts, and rendered a decree against Fred for $1,551.65, "to be paid out of the money in the hands of defendant Schmitz to the amount of $1,000," and "that plaintiff recover of the defendant Schmitz the sum of $1,000 and costs of suit, and that the same when collected be applied on the judgment of plaintiff herein against Fred H. Hoppe, and that plaintiff have execution therefor." The defendant Schmitz appealed to this court.

With the exception of the introduction of the notes in evidence, the entire case was tried on the pleadings. The defendant Fred was served by order of publication, but did not make an appearance. Defendant Schmitz was summoned as garnishee; so it may be said that he occupies a double relation to the case, and he filed two answers, one as defendant and the other as garnishee, though there were no interrogatories filed. Each of the answers was under oath. As the answers were sworn to, defendant contends that the notes should not have been admitted in evidence without proof of their execution. We think the point not well taken. The denial of execution under oath which makes necessary for the plaintiff to prove such execution is the denial and oath of the maker. The statute reads that the note "shall be adjudged confessed unless the party charged to have executed the same deny the execution thereof." Section 746, Rev. St. 1899 (Ann. St. 1906, p. 731). The object in introducing the notes was to establish the indebtedness against the defendant Fred Hoppe so as to form a base for proceeding against the defendant Schmitz. As there were no interrogatories filed, and as defendant Fred did not appear, we have to determine the case from the petition, the defendant Schmitz's answers, and the replies thereto. It was alleged in the petition that the notes were executed by Fred; that he was the son and one of the heirs of August Hoppe, who died in Florida, leaving an estate of which Fred was entitled to one-fifth; that deceased left in Livingston county, Mo., $8,000, and that he did not owe any debts; that defendant Schmitz had been appointed administrator in Livingston county; that defendant Fred was a nonresident, and was either insolvent or had concealed his property so as to hinder and delay his creditors; and that, unless his interest in his father's estate in the hands of Schmitz as administrator be subjected to the payment of debts, creditors would lose their claims. The answer of Schmitz as garnishee (no interrogatories being filed as already stated) was (1) that at the time he was summoned as garnishee he did not owe defendant Fred anything, nor did he have anything of his in his hands or under his control; (2) that he was summoned as garnishee as administrator prior to an order for final distribution, or for payment of legacies, or the allowance of a demand; (3) that the estate was in course of administration by garnishee, which administration was only ancillary, the domicile of deceased at his death being in Florida and the probate court of Livingston county had no authority to order distribution here, said estate being only subject to administration in Florida; (4) that the circuit...