Sheedy v. Second Nat'l Bank

• Citation: 62 Mo. 17
• Parties: DENNIS SHEEDY, Appellant, v. SECOND NATIONAL BANK, Garnishee of JAMES STREETER, Respondent.
• Decision Date: 31 January 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 17

DENNIS SHEEDY, Appellant,

v.SECOND NATIONAL BANK, Garnishee of JAMES STREETER, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

J. O. Broadhead, with Broadhead & Overall, for Appellant.

The interest of one partner in a debt owing to an abundantly solvent partnership composed of two equal partners, as is the case here, may be attached by a creditor of one of the partners, for the separate debt of that partner. (Colly. Part., § 822, p. 704, and notes; Douglas vs. Winslow, 20 Me., 89, 92, 93; Pearce vs. Jackson, 6 Mass., 242; Allen vs. Wells, 22 Pick., 450; Dow vs. Sayward, 12 N. H., 276-7; Morrison vs. Blodgett, 8 N. H., 238; Sto. Part., 392, §§ 261, 263, 397; 1 Pars. Cont., 205; Moody vs. Payne, 2 Johns. Ch., 548; Bish. Prin. Eq., §§ 520, 521; Moore vs. Burnell, 52 Me., 162; Russ vs. Fay, 29 Vt., 386; 7 How Pr., 229; Id., 383; 7 Ia., 39; 8 Ia., 1; 26 Ia., 422; 3 Ala., 319; 34 Ala., 722; 20 Ga., 386.)

Money or debts due the firm are in nowise distinguished from other effects or assets, as respects their liability to attachment or garnishment for the separate debts of a partner. (Thompson vs. Lewis, 34 Me., 169; Wallace vs. Patterson, 2 Har. & McHenr. [Md.], 463; 29 Vt., 162; McCarty vs. Emlen, 2 Dallas [Pa.], 277; Lewis vs. Payne, 1 Leg. Gaz. [Pa.], 508; 2 Yates [[[[[Pa.], 190; Chatzell vs. Bolton, 3 McCord [S. C.], 33; Robinson vs. Tevis, 38 Cal., 611.) In this case had the necessity existed for the money due from the Second National Bank to James Streeter & Co, to be held and applied by the partners to the partnership debts, all their rights appertaining thereto could have been determined, had the court below sustained the motion of appellant to compel them to be brought in as parties, when the garnishee's answer showed that these were interested jointly in the debt. Or the parties, or either of them, could have interpleaded, for they were fully aware of the proceeding, both of them and their book-keeper being witnesses in the case.

In all of the authorities adverse to our position in this case, the necessity of applying the money and credits of the firm to partnership debts, in the first place, and the alleged difficulty in this kind of a proceeding, of determining whether solvent or not, and also the uncertainty of the interest of the partners in the fund, have been the reasons urged in support of, and the question upon which depended, the decisions of the courts. But in this case no such reasons exist, or can in the remotest degree apply.

E. B. Sherzer, for Appellant.

I. When, upon the pleadings and proofs the solvency of a partnership is established, and the interest of a partner therein ascertained, such interest in a debt due such partnership can, by the process of a garnishment, be subjected to the payment of such partner's individual indebtedness. (Fisk vs. Herrick, 6 Mass., 271, 272; Robinson vs. Tevis, 38 Cal., 611, 618, 619; Mobley vs. Lonbat, 7 How. [Miss]. 318, 320, 321; Barber vs. Hartford Bank, 9 Conn., 407, 410; Winslow vs. Ewing, 1 Ala., 129, 132.) That without such ascertainment the interest of a partner in a debt or fund due the partnership can be garnished for his individual indebtedness, is maintained by the following authorities: (Wallace vs. Hull, 28 Ga., 68, 70, 71; Chatzel vs. Bolton, 2 McCord, 478, 481; Wallace vs. Patterson, 2 Har. & McHen., 463, 469; McCarty vs. Emlen, 2 Dal., 278, 279; Whitney vs. Munroe, 19 Me., 42, 45; Thompson vs. Lewis, 34 Me., 167, 170, 171; Miller vs. Richardson, 1 Mo., 370; Robinson vs. Tevis, 38 Cal., 611; Pars. Part., ed. 1867, pp. 359, 360.)

If the proposition is claimed to be inapplicable because garnishment is matter of strict law, we have authorities showing that the measure and value of a partner's interest can be ascertained in a replevin suit. (Rapp vs. Vogel, 45 Mo., 524, 526; Gillham vs. Kerone, Id., 487, 490; Dilworth vs. McKelvy, 30 Mo., 149, 154.) And execution may be levied on partnership effects to satisfy individual indebtedness. (Wiles vs. Maddox, 26 Mo., 77, 83.) If claimed to be inapplicable because in execution tangible property is taken, and a debt is intangible, we say the statute knows no such distinction. (Wagn. Stat., 664, § 1; 665, § 7; compare “Attachment,” p. 184, §§ 18, 19, 30, 35; ““Executions,” 606, § 20; see also dissenting opinion, Hosmer, J., in Church vs. Knox, 2 Conn., 522, 524, following out theory principles in Wiles vs. Maddox; 28 Ga., 68, 70, 71.)

If it be contended that the decisions in our State are opposed to claim here made, it is submitted that Kingsley vs. The Missouri Fire Co. (14 Mo., 465) was decided before the new code of 1849, blending law and equity, and in the opinion of Ryland, J., given with hesitation, the action of the court seems based upon theory of garnishment being a matter of strict law (p. 468).

McDermott vs. Donegan (44 Mo., 85) merely states that whatever would defeat creditors would be fatal in garnishment. It does not decide that a creditor's interest cannot be reached and made answerable for his individual debts. Lackland vs. Garesche (56 Mo., 266, 269, 270, 271) was a case in which the court called upon the trustee to account and perform his duties as trustee, and decides that garnishment can operate only upon effects not encumbered with a trust, and proceeds upon the idea, that in trusts continuing until a settlement had with beneficiary, chancery was alone competent to administer justice. But in the case at bar the garnishee is not a trustee. He has, indeed, a fund owing to, or is indebted to two who are partners, but their respective interests therein are ascertained by their own sworn testimony.

II. Certainly, inasmuch as the answer disclosed a person or persons, other than the individual debtor claiming an interest in a fund in the custody of the court, or of the law, such persons could and should be directed to establish their rights therein, and the court erred in overruling the motion designed to bring the parties interested, or claiming an interest in said fund before it. Our court, having both legal and equitable powers, in case of a fund or property brought, by suit at law, under its control, may compel partners claiming an interest therein to come in and interplead, or the farther and subsequent proceedings may be confined to equitable procedure. (Richardson vs. Jones, 16 Mo., 177; Ladd vs. Couzins, 35 Mo., 513, 515; Morrison vs. Blodgett, 8 N. H., 254; Fisk vs. Herrick, 6 Mass., 271.) And such appears to be the object and design of our statute. (Wagn. Stat., 668, §§ 25, 26; Id., 665, § 9; Id., 666, § 12.)

Clark & Dillon, with Cline, Jamison & Day, for Respondent.

I. In action by attachment against an individual, a person is not liable to be garnished who is indebted to a copartnership of which that individual is a member. (Kingsley vs. Missouri Fire Co., 14 Mo., 466; Drake Attach. [4 ed.] 576.) The whole course of decisions in this State leads irresistibly to the same conclusion, for they assert that the plaintiff has no other or greater rights against a garnishee than the defendant himself had, and whatever would defeat the defendant in an action against the garnishee will be fatal to the claim of plaintiff against the garnishee. (Firebaugh vs. Stone, 36 Mo., 111; Weil vs. Tyler, 38 Mo., 545; McDermott vs. Donegan, 44 Mo., 89; Drake Attach., § 672.) In this case it is clear that the defendant Streeter could not maintain an action against the garnishee, one partner not being able to maintain an action for a debt due the partnership. (1 Chitt. Pl., 8-11; Kingsley vs. Mo. Fire Co., supra.)

II. The motion of plaintiff to require Streeter & Rizer, the members of the firm of James Streeter & Co., to appear and litigate their respective interests in this debt owing by garnishee to the firm, was properly overruled. There is no authority for such a proceeding. Garnishment proceedings in this State are purely legal, with nothing of an equitable nature about them. (Kingsley vs. Mo. Fire Co., supra, Wagn. Stat., 665, § 7.) Besides, what plaintiff asked for was clearly impracticable. The respective interests of the several partners in this debt could not be ascertained without a settlement of the entire partnership business.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his action against one Streeter, by attachment, and the defendant was garnished in the proceeding. At the return term defendant filed its answer to the interrogatories propounded, and stated that it was not indebted in any manner to Streeter, but that it was indebted to Streeter & Co., a co-partnership firm composed of Streeter and one Rizer, and therefore asked to be discharged.

To this answer plaintiff filed a denial, and then set up affirmatively, among other things, that the garnishee was indebted to Streeter & Co. for money deposited by said firm with garnishee, and that the firm was solvent, and that both members of the firm were non-residents and had no creditor in this State except the plaintiff, and that all the monies and effects of Streeter & Co. in this State were deposited with and in the possession of defendant. To this affirmative matter thus pleaded, the defendant demurred, for the reason that it was irrelevant and immaterial, and showed no cause of action against or liability of defendant as garnishee. This demurrer was by the court sustained.

Plaintiff then moved the court to grant an order requiring Streeter and Rizer, the members of the firm, to appear and litigate, and show their respective interests in the fund. This motion was by the court overruled.

On the trial the facts stated in the answer were fully proved, and the court gave judgment for the defendant.

The important question which underlies this case is, whether in an action by attachment against an individual, a person is liable to be garnished who is indebted to a co-partnership of which that individual is a member. It is conceded that there is some conflict...