Rubin v. Bassakin

• Decision Date: 28 June 1939
• Docket Number: No. 24846.,24846.
• Citation: 130 S.W.2d 224
• Parties: RUBIN v. BASSAKIN (NORTHWESTERN TRUST CO., Garnishee).
• Court: Missouri Court of Appeals

130 S.W.2d 224

RUBIN v. BASSAKIN (NORTHWESTERN TRUST CO., Garnishee).

No. 24846.

St. Louis Court of Appeals. Missouri.

June 28, 1939.

As Modified on Denial of Rehearing July 11, 1939.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Ben Rubin, by C. M. Walters, Sr., etc., against Ben Bassakin, wherein Northwestern Trust Company was summoned as garnishee. From an adverse judgment, the garnishee appeals.

Affirmed.

Leahy, Walther, Hecker & Ely and Hugo M. Walther, all of St. Louis, for appellant.

Grimm, Mueller & Roberts, of St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal by Northwestern Trust Company from a judgment rendered against it by the Circuit Court of St. Louis County in a garnishment proceeding in which the trust company was summoned as a garnishee.

It appears that, on May 2, 1933, a judgment in the sum of $75 was rendered in a justice of the peace court in favor of respondent Ben Rubin, as plaintiff, against Ben Bassakin, as defendant. A transcript of the judgment was filed in the circuit court, upon which garnishment proceedings were begun against the appellant trust company and a garnishment summons was served upon the trust company on May 27, 1933. The summons recited that it was issued by virtue of a writ of fieri facias (execution) in favor of Ben Rubin and against "Ben Bassakin." In due time interrogatories were filed by Ben Rubin, after which answers thereto were filed by the trust company. All of the interrogatories filed by respondent Ben Rubin, as plaintiff, as well as the answers thereto made by appellant as garnishee referred to the judgment debtor as "Ben Bassakin." In its answers to the interrogatories, the trust company denied that it had in its possession, custody, or charge any goods, chattels, moneys, or credit belonging to "Ben Bassakin", and stated that it was not in any way indebted to "Ben Bassakin"; that it was not in any way bound in any contract to pay "Ben Bassakin" any money.

Respondent Ben Rubin filed a denial to the trust company's answers to the interrogatories, and alleged therein that, at the time of the service of the garnishment, the trust company did have and since said time has had in its possession goods, chattels, moneys, and credits belonging to Ben Bassakin in the form of a banking account; that, at the time of the service of the garnishment, it was and has since been indebted to Ben Bassakin; that, at the time of the service of the garnishment, the trust company was bound and has since been bound to pay Ben Bassakin money.

The cause was tried before the court without a jury in May, 1937, upon an agreed statement of facts and the testimony of Ben Basskin, who was the only witness. The agreed statement of facts is as follows:

"(1) That the summons of garnishment was served upon the garnishee on May 27, 1933, copy of the said summons so served upon the garnishee being attached hereto and made part of this stipulation.

"(2) That at the time of the service of said notice the garnishee (a banking corporation) did not have any account upon its books in the name of `Ben Bassakin.'

"(3) That on the said 27th day of May, 1933, when the said garnishment summons was served upon garnishee, garnishee had a checking account under the name of `B. Basskin.' That the balance to the credit of the said account on said May 27, 1933, after the service of the said garnishment summons, was $92.86. That on May 29, 1933, a check for $12.00 with the registered signature of `B. Basskin' was drawn against the said account and paid. That on May 31, 1933, a check for $75.00, with the registered signature of `B. Basskin,' was drawn against the said account and paid. That as of May 31, 1933, there was charged against the said checking account 26 cents tax on checks drawn against the said account during the month of May. That on June 2, 1933, a check for $5.00 with the registered signature of `B. Basskin' was drawn against the said account and paid. That there is a balance of 60 cents to the credit of said account, subject to the service charge of garnishee.

"(4) That the interrogatories filed by plaintiff herein on September 20, 1933, made inquiry only as to indebtedness by garnishee to `Ben Bassakin.' That the said interrogatories made no inquiry as to any indebtedness to `B. Basskin.'

"(5) That no notice was given to garnishee at the time of the service of the said garnishment summons or at any time before the checks against the account with garnishee in the name of `B. Basskin' were drawn and paid, that plaintiff claimed that garnishee's depositor, `B. Basskin,' is the same person as `Ben Bassakin,' the defendant in the execution upon which the garnishment was issued."

The testimony of Ben Basskin, who was called as a witness for respondent Ben Rubin, was to the effect that he had been served with a summons in a justice of the peace case in which Ben Rubin sued "Ben Bassakin"; that he contested that suit; that he was the same person who was sued in that suit under the name of "Ben Bassakin." The witness further testified that he had a checking account with the garnishee trust company in the name of "B. Basskin."

At the close of all the evidence, the garnishee trust company requested the court to give two declarations of law as follows:

"1. The Court declares the law to be that the service upon the garnishee of a summons of garnishment upon an execution against one Ben Bassakin did not attach the checking account with Garnishee in the name of `B. Basskin', even though the defendant in the execution `Ben Bassakin' and Garnishee's depositor `B. Basskin' are one and the same person, unless the Garnishee before honoring the checks shown in the evidence to have been drawn against said checking account after the service of the garnishment summons, had notice of the fact or of facts sufficient to put Garnishee upon inquiry that said checking account with Garnishee was the property of Ben Bassakin named in the garnishment summons served upon the Garnishee.

"The Court further declares the law to be that the burden rests upon the Plaintiff of proving the identity of `Ben Bassakin' named in the summons with Garnishee's depositor `B. Basskin' and that Garnishee had notice of such facts or of facts sufficient to put Garnishee on inquiry, before paying the checks shown in evidence to have been drawn against said checking account in the name of `B. Basskin', after service of the garnishment summons.

"The Court further declares that any similarity of the name of the execution defendant given in the garnishment summons as `Ben Bassakin' to the name of Garnishee's depositor `B. Basskin' is in itself insufficient to charge Garnishee with notice that said execution defendant and Garnishee's depositor were one and the same person."

"2. The Court declares the law to be that under the pleadings and the evidence the finding must be in favor of the Garnishee and against the plaintiff."

Both declarations of law were refused by the court, garnishee saving its exceptions to such ruling.

On July 29, 1937, the court made a finding and order that the garnishee pay into the registry of the court, on or before September 8, 1937, the sum of $75 with interest at six per cent. from May 27, 1933, failing which judgment would be rendered against garnishee in said sum. On August 2, 1937, the trust company filed a motion to set aside said finding and order and to grant it a new trial. On September 10, 1937, the trust company having failed to pay into court the sum required by the court's order of July 29, 1937, the court entered a judgment in favor of Ben Rubin, as plaintiff, and against the trust company as garnishee in the sum of $94.20 and costs. Thereafter, the trust company filed a motion for a new trial, which being overruled it duly appealed to this court.

As will be observed from the foregoing statement, the controversy between the trust company, as appellant herein, and plaintiff Ben Rubin, as respondent herein, turns upon the spelling of the name of the defendant in the original suit as that name appears in the writ of execution and in the interrogatories served upon the trust company.

The trial judge found, and it is not disputed, that, at the time of the service of the writ of garnishment, the trust company did not have on its books an account in the name of "Ben Bassakin", but that it did have an account on its books at that time under the name "B. Basskin." The trial judge further found, and it is not disputed, that at the time of the service of the writ of garnishment on the garnishee trust company on May 27, 1933, there was a balance to the credit of the account of "B. Basskin" amounting to $92.86; and that several withdrawals were made from said account after the writ of garnishment was served, all upon checks signed "B. Basskin." The amounts and dates of such withdrawals are not disputed. After stating the facts above referred to, the trial judge, in his finding and order, said: "The question is whether or not the names `Ben Bassakin' or `B. Basskin' are idem sonans. The defendant Bassakin, on the witness stand, admitted that he was the same person against whom the plaintiff obtained a judgment in Justice Werremeyer's court for rent due the plaintiff, and that he was the same person who had a checking account in the Northwestern Trust Company in the name of B. Basskin."

The trial judge then set forth in his finding and order a rather extended list of cases decided by the courts of this and other states illustrating the application of the rule of idem sonans. The list of cases concludes with a quotation from the case of Little et al. v. Browning et al., 287 Mo. 278, 230 S.W. 92, in which the Supreme Court held that, although the summons and return of process in that case gave the name of the defendant as "Martha J. Hornback", whereas her name was "Hornbeck", she was nevertheless required to take...