Potter v. Whitten
| Decision Date | 03 March 1913 |
| Citation | 155 S.W. 80,170 Mo.App. 108 |
| Parties | J. A. POTTER, Respondent, v. (E. G. WHITTEN, Defendant) THE CONQUEROR TRUST COMPANY, GARNISHEE, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from Jasper Circuit Court. Division Number Two.--Hon. David E. Blair, Judge.
AFFIRMED.
STATEMENT.--On May 19, 1910, J. A. Potter recovered a judgment against E. G Whitten in the circuit court of Jasper county for the sum of $ 1724.45 together with costs.
On March 23, 1910, Vera E. Whitten, wife of E. G. Whitten quitclaimed all of her interest in the Whitten-Chesley Mines Company, a corporation, to the corporation.
On June 22, 1910, certain property of E. G. Whitten was sold by the sheriff under execution upon plaintiff's judgment, and there was credited upon said judgment from the proceeds of said sale the sum of $ 115.72.
On June 4, 1910, E. G. Whitten entered into a contract with Frank Chesley whereby he agreed to sell and deliver to said Chesley all the stock and interest he had in the Whitten-Chesley Mines Company, and in consideration of such transfer and other transfers not necessary to be brought into the opinion in this case, the said Frank Chesley agreed to deliver to Vera E. Whitten, wife of E. G. Whitten, the sum of $ 1800 for herself, and to take care of some debts, and to deliver to Vera E. Whitten certain other funds not necessary to be detailed here for other parties, and further agreed to pay all bills of the Whitten and Chesley partnership which existed prior to the incorporation of the Whitten-Chesley Mines Company, and to relieve E. G. Whitten and Vera E. Whitten of the payment of such debts.
On June 15, 1910, a writ of garnishment was served on the Conqueror Trust Company based on J. A. Potter's judgment against E. G. Whitten, and at the same time there was served on said trust company the following notice:
At the October term, 1910, the usual interrogatories were filed by J. A. Potter to be answered by the Conqueror Trust Company concerning its possession, control or custody of any goods, money, chattels, claims or effect or any indebtedness whatever to the said E. G. Whitten. The Conqueror Trust Company answered said interrogatories denying its possession, control or custody, of any goods, money, chattels, claims or effects or any indebtedness whatever to said E. G. Whitten.
The allegations contained in the garnishee's answer were denied by J. A. Potter, alleging that E. G. Whitten sold to Frank Chesley on June 4, 1910, among other things, stock in the corporation and that he received as payment, among other things, a check for $ 1800 which was made payable to Vera E. Whitten, wife of E. G. Whitten, and that said money was deposited with the Conqueror Trust Company, and that said money was the property of E. G. Whitten and was placed in the name of Vera E. Whitten for the purpose of attempting to hinder, delay and defraud the creditors of E. G. Whitten out of their just rights, and particularly this plaintiff, and praying for judgment against the garnishee for the money so deposited.
To this denial the Conqueror Trust Company demurred stating as reasons that said reply does not state facts sufficient to constitute a cause of action against the garnishee and that the matters and things therein set out seek to raise issues in equity which cannot be raised in garnishment proceedings.
On February 9, 1911, this demurrer was overruled, and the garnishee on February 10, 1911, filed an amended answer to the interrogatories in which it makes the same denials made in the former answer and sets up the further answer that the garnishment, not having been issued until June 15, 1910, and prior to the sale of the stock for $ 115.72 at execution sale, the same was issued prematurely.
On the same day, February 10, 1911, the garnishee filed the following motion (formal parts omitted):
"Comes now the Conqueror Trust Company, garnishee, and moves the court to make an order upon the said Vera E. Whitten, the supposed assignee, to appear at a designated time and sustain her claim to the bank deposit in controversy as provided by section 2439 of the Revised Statutes of Missouri, 1909."
On February 16, 1912, the court denied this motion.
On February 13, 1911, J. A. Potter denied the allegations of the amended answer, and alleged that the money placed in the bank by Vera E. Whitten and under the bank's control was not the money of Vera E. Whitten but was the money of E. G. Whitten, and that it was placed in Vera E. Whitten's name for the purpose of attempting to hinder, delay and defraud the creditors of E. G. Whitten, and particularly this plaintiff.
On the same day a demurrer was filed to the denial of the plaintiff by the garnishee, alleging that it appears on the face of the denial (1) that the court has no jurisdiction of the person of the garnishee or the subject of the action; (2) that there is a defect of parties defendant, that is to say that said denial shows upon its face that Vera E. Whitten is a necessary party to a complete determination of the issues herein; and (3) that the denial does not state facts sufficient to constitute a cause of action against the garnishee.
A change of venue was then taken, and on June 20, 1912, the garnishee filed an amended reply in which it again denied having any money belonging to E. G. Whitten, but alleged that on June the sixth and June the seventh, 1910, Vera E. Whitten, wife of the defendant, deposited with the garnishee in her own name sums amounting to $ 1750 (what follows was, on motion of the plaintiff, stricken out) and that she continued to check against said account in her own name which checks were honored until June 20, 1910, when the said funds were fully checked out and the said account closed; that immediately upon the service of the writ of garnishment, E. G. Whitten and Vera E. Whitten made affidavits to the effect that the money deposited in the name of Vera E. Whitten was her sole and separate property and did not belong to E. G. Whitten; that the garnishee had no further information or knowledge of the ownership of said funds, and that acting on the advice of counsel her checks were paid, and that she had no money to her credit. Further, that at the time said money was deposited by said Vera E. Whitten the garnishee had no knowledge of any transaction fraudulent in its character, and that the notice served on June 15, 1910, set up no fact to show fraud nor any fact which the garnishee could rely upon for such conclusion of fraud.
On June 20, 1912, the garnishee filed a motion asking that Vera E. Whitten be made an intervening party, stating as a reason that she was a necessary and indispensable party to the cause for the complete and final determination of the same. The plaintiff on the same day asked that this motion be stricken from the files, first, because a similar motion had already been made in the same suit which had been overruled, and second, because it was trifling with justice, which application was sustained, and the motion to have Vera E. Whitten made a party was stricken out.
The jury found the issues for the plaintiff and against the garnishee and judgment was rendered for the sum of $ 1578.77. After unsuccessful motions for new trial and in arrest of judgment the garnishee appealed to this court.
The evidence showed that some time prior to the organization of the Whitten-Chesley Mines Company, a corporation, Vera E. Whitten received about $ 7000 from the sale of some stock, in no way connected with this transaction. Vera E. Whitten claimed that the $ 1800 she received from Chesley was in payment of a loan she had made to the Whitten and Chesley partnership. There is evidence that E. G. Whitten was insolvent on June 4, 1910, the date on which he sold his stock to Chesley and ordered the money paid to his wife.
The appellant contends that the trial court erred in the following particulars:
(1) The issue raised by the plaintiff's denial is of such a nature that it cannot be tried in a garnishment proceeding, and the court should have sustained the garnishee's demurrer to the evidence.
(2) The court erred in overruling the garnishee's motion to make Vera E. Whitten a party to this suit as provided by section 2439, R. S. 1909.
(3) The court erred in admitting incompetent and rejecting competent evidence.
(4) The court erred in the giving and refusal of instructions.
(5) The court erred in striking out that portion of the garnishee's answer showing that the money was checked out in full by June 20, 1910,...
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