Quarles v. Porter

• Decision Date: 31 July 1848
• Citation: 12 Mo. 76
• Parties: QUARLES & THOMPSON v. PORTER.
• Court: Missouri Supreme Court

12 Mo. 76

QUARLES & THOMPSON

v.PORTER.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO COOPER CIRCUIT COURT.

HAYDEN, for Plaintiffs.

1st. At the time the defendant was summoned as garnishee in the cause, he was indebted to Pearce, in the sum of $800, by virtue of the note given by him to Pearce therefor, and that there is no evidence in the cause conducing to show that the note had been assigned by Pearce to Sharp before the garnishment, but if there be any legal evidence of the assignment, it conducess to show that the same was made by and between Pearce and Sharp, to prevent the debt therein specified from being attached by plaintiffs for their said debt, and that therefore the said assignment was, and is, fraudulent and void, as against the plaintiffs, as creditors of the defendant, Pearce. 7 Mo. R. 436; 6 Mo. R. 358; 17 Mass. R. 558; 16 Mass. R. 318; 11 Mass. R. 299, 300-1; 17 Cond. R. 492. See the authorities referred to in these cases: 17 Maine R. 359, 360; Mo. Dig. §§ 27 to 35 inclusive, p. 140-1, title Attachment; Mo. Dig. 1845, p. 476, § 6. 2nd. The Circuit Court erred in rejecting the evidence of Gitt, a witness, and other evidence offered by the plaintiffs upon the trial of the cause. The evidence of Gitt, which was rejected, was proper to identify the note as the note of $800, and to negative the fact alleged by Porter in his answer that it had been assigned by Pearce to Sharp, as he had been informed and believed. 3rd. The court erred in permitting the defendant, Porter, to read the whole of his answer, with the affidavit and the alleged release of Combs, accompanying the same as evidence upon the trial of the cause. 4th. Combs had no authority as attorney at law, or attorney in fact for the plaintiffs, to discharge the defendant, as garnishee, from liability to answer over to plaintiffs for the said $800 mentioned in said promissory note. 1 Pick. 350-1; 10 Johns. 220, 8 Johns. 361; 1 Cowen, 498-9; 6 Johns. 51-2-3. 5th. The Circuit Court erred in refusing to give to the jury said several instructions which were asked by plaintiffs and refused by the court. 6th. The court erred in giving to the jury the said several instructions moved for by the defendant. . 7th. The court erred in refusing to set aside the verdict, for the reasons mentioned in the plaintiffs' motion therefor.

LEONARD & STRINGFELLOW, for Defendant.

1st. The answer is to be taken as true, both as to the assignment of the note given by defendant and the release given to defendant, until it is disproved by evidence. It is not necessary that defendant should prove the facts alleged in his answer, and the second instruction asked by plaintiffs was properly refused. Black v. Paul, 10 Mo. R. 102; 8 Mo. R. 657. 2nd. The only indebtedness for which defendant could be liable, if for any, on this note, was an indebtedness at the time he was summoned as a garnishee. It is absurd to contend that any indebtedness arising after the attachment or service of notice could render defendant liable. If so, all transactions between defendant and the debtor would be prohibited from the time of the service of notice until the answer of defendant could be filed, although the execution itself might have been long returned. The second instruction asked by plaintiff was therefore properly refused. Rev. Code, 1835, p. 254; 1 Ala. R. new series, 396; 2 ibid, 349. 3rd. The release did not purport to be executed by Combs as “an attorney at law,” and hence the fifth instruction asked by plaintiffs was properly refused. 4th. The answer did not allege that Combs, as attorney at law, executed the release, but averred that he “had authority to make the release.” It was thus immaterial how he acquired his authority, and the fourth instruction given for defendant placed this matter before the jury properly, if not too favorably for plaintiffs. 5th. Combs, as an attorney al law for the plaintiffs, had the right to release and discharge the defendant from answering to the garnishment. This principle was waived by defendant on the trial, as not necessary to his defense, and it is now only asserted that he may not be deemed as admitting the correctness of the first and third instructions given for plaintiffs. 6th. In this case, however, the answer and evidence show that Combs had authority “to do the best he could with the case.” His acts, not as an attorney at law, but as agent, were recognized by plaintiffs. 7th. The note given by Porter being negotiable, the policy of the law concerning such instruments, and the manifest injury and oppression which would necessarily result to the maker, or the frauds which the law would practice upon indorsees, if such debts could be attached, must preclude any other conclusion than that this debt cannot be attached. 4 Mass. R. 508; 13 Mass. R. 215; 5 N. Hamp. R. 502; 5 Ark. R. 55; 10 Mo. R. 374; 9 Mo. R. 382; 8 Mo. R. 660. 8th. Although the indorsement may have been without consideration, and with the intent to defraud the creditors of Pearce, it was yet valid as to Porter, a want of consideration, or fraudulent intent was no defense to him, although the proceeds in the hands of Sharp might, as to creditors, have been held the property of Pearce. For this reason, the sixth, seventh and eighth instructions asked by plaintiffs were properly refused. 9th. The consideration of, or fraudulent intent in the indorsement of the note, could not be inquired into in a contract between these parties. Those questions, if at all, could only be investigated on a notice to, or garnishment of the assignee. 17 Maine R. 401; Rev. Stat. Maine, 530, 531. 10th. If the note appear from the answer, or evidence to have been assigned, it is the duty of the plaintiff to bring the assignee into court. The necessity of avoiding the assignment and proving the indebtedness of the defendant by showing the real owner of the note, devolving upon the plaintiff. 17 Maine R. 401. 11th. Porter, not being charged as privy to or cognizant of the alleged fraud in the transfer of the note, the sixth, seventh and eighth instructions asked by plaintiffs, were properly refused. 12th. There was no sufficient service of the attachment in this case. The notice set out in the answer, and which is admitted to have been the only one served upon the defendant, was not a summons to answer to these plaintiffs, but others, and not upon this execution, but upon “five executions,” in favor of other plaintiffs. This objection may be made in the answer of a garnishee, it not being governed by any special rules of pleading, but intended to enable the defendant to set up any defense as against the debtor in the execution, or to prevent the recovery of plaintiff. 9 Mo. R. 236. 13. Admitting that all our previous positions are incorrect, if the court should be of opinion that the service was insufficient, it will not reverse the judgment of the Circuit Court and send the cause back to be there dismissed on the motion for that purpose, filed by defendant. A judgment will not be reversed, although erroneous, if no injury has resulted to the party against whom it is rendered.

MCBRIDE, J.

Quarles & Thompson having obtained judgment in the Cooper Circuit Court, against Thomas Pearce, caused an execution to be issued thereon, directed to the sheriff of Chariton county, which was levied on some real-estate and personal property of Pearce, and also service on William Porter, as garnishee, to appear at the next term of the Cooper Circuit Court, and answer such allegations and interrogatories, touching his indebtedness to Pearce, as might be exhibited against him by the plaintiffs. The service was on the 3rd of August, 1844.

At the March term, 1845, of the Cooper Circuit Court, the plaintiffs filed their interrogatories against Porter, the garnishee, which, at the September term following, he answered. The answer states substantially, that in the forenoon of the 3rd of August, 1844, the respondent purchased of the defendant, Pearce, a tract of land, at the price of $800, to be paid on the 25th December, following, and executed and delivered to him his negotiable promissory note for the same--that in the afternoon of the same day he was summoned as garnishee; but, prior to the service of the garnishment, he has been informed and believes that his note was assigned and delivered by said Pearce, to one James Sharp, for a valuable consideration, and that at the time he was summoned as garnishee, the legal title to his said note was in the said Sharp, and hence he was not indebted to said Pearce, at the time he was summoned as garnishee. The answer further states, that on the 25th October, 1844, it was agreed by and between the said Pearce and one Joseph Combs, acting for and in behalf of the plaintiffs, that Pearce should pay the said plaintiffs $100; in consideration whereof, this affiant should be released from the garnishment, and not be required to answer the same, and that the sheriff of Chariton county should return the executions in his hands not served on respondent; thereupon the said Combs, on behalf of plaintiffs, executed to the respondent a written release and discharge from the attachments, as he had the legal right to do. That after the making of the foregoing agreement, the respondent paid to said Pearce, who then had his note in possession, the full amount of said note, under the belief that he then had a right to pay the same. A general replication was filed by the plaintiffs, putting in issue the truth of the affiant's answer.

Upon the hearing of the evidence, the jury rendered a verdict in favor of the defendant; when the plaintiffs filed their motion for a new trial, which being overruled by the court, they excepted, and have brought the case to this court by writ of error.

To sustain the issue on their part, the plaintiffs introduced evidence, conducing to prove that the assignment made by Pearce to Sharp was fraudulent, and made for the purpose of hindering and delaying creditors;...