Shelton v. Cooksey
| Decision Date | 01 November 1909 |
| Citation | 122 S.W. 331,138 Mo.App. 389 |
| Parties | FRANK B. SHELTON, Administrator Estate of DAVID R. SHELTON, Deceased, Respondent, v. VINCENT COOKSEY, Defendant; MARY A. COOKSEY, Administratrix Estate of JOHN S. COOKSEY, Deceased Garnishee, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. G. W. Wanamaker, Judge.
Reversed and remanded.
Hall & Hall for appellant.
The undisputed evidence shows that the defendant Vincent Cooksey owed George Cooksey for the land sold to Robinson, who was to be paid or was entitled to the proceeds of the land when sold, that the garnishee was the agent of George Cooksey and as such had received and held the $ 1,800 draft issued by the Cook & Vencill Bank, payable to George Cooksey, the proceeds of the Vincent Cooksey lands and other lands of George Cooksey at the of the service of the garnishment, by a prior agreement between the defendant and George Cooksey was the property of George Cooksey at the time and was not subject to the garnishment. For plaintiff as the attaching creditor could hold the garnishee only to the extent of the garnishee or his principal George Cooksey's liabilities, to the defendant Vincent Cooksey. Plaintiff by the garnishment could not place the garnishee in a worse position than if he had been sued by the defendant, Vincent Cooksey. Karnes v Prichard, Garn., 36 Mo. 137; Scales v. Hotel Co., 37 Mo. 524. There can be no question but George Cooksey had a lien on the land he had sold to Vincent Cooksey for the purchase money therefor, which lien was superior to any right acquired by plaintiff by the garnishment, and the court erred in refusing to give garnishee's third instruction. Truesdale v. Brennan, 153 Mo. 604; Wynn v. Investment Co., 125 Mo. 543; Johnson v Burks, 103 Mo.App. 227; Eubanks v. Finnell, 118 Mo.App. 543; Majors v. Maxwell, 120 Mo.App. 286.
E. M Harber, A. G. Knight and O. N. Gibson for respondent.
A defect of parties cannot be taken advantage of by objection to the introduction of any testimony in the case. Unless raised by demurrer or answer, such defect is waived. R. S. 1899, sec. 598, 602; Crook v. Tull, 111 Mo. 283, 20 S.W. 8; Butler v. Lawson, 72 Mo. 227; Dunn v. Railroad, 68 Mo. 268; Horskotte v. Menier, 50 Mo. 158; Toovey v. Baxter, 59 Mo.App. 470; Garrett v. Cramer, 14 Mo.App. 401. Section 3459, Revised Statutes 1899 does not abrogate the rule. It is merely directory, and a failure to comply with it would not defeat the court of jurisdiction in any case. McKettrick v. Clemens, 52 Mo. 160; Murphy v. Wilson, 45 Mo. 427. The general rule is well settled that an attaching creditor succeeds merely to the rights of the defendant, and any defense which would be available to the garnishee as against such defendant may be interposed to defeat the garnishment. Firebaugh v. Stone, 36 Mo. 111; McPherson v. Railroad, 66 Mo. 103; Sheedy v. Bank, 62 Mo. 17. But the exception to this rule is equally well settled that in cases of fraud, actual or constructive; the rights of the attaching creditor as against the garnishee are not measured by those of the attachment defendant. Hungerford v. Greengard, 95 Mo.App. 659; Baker v. Schneider, 85 Mo.App. 417; Donk Bros. v. Kinealy, 81 Mo.App. 646; Epstein v. Clothing Co., 67 Mo.App. 221; Brewing Ass'n v. Steimke, 68 Mo.App. 52; Eyerman v. Kreickhaus, 7 Mo.App. 455.
The controversy grows out of a garnishment proceeding.
The plaintiff instituted suit in the circuit court of Grundy county and sued out attachment in aid thereof, by means of which a certain fund in the hands of John S. Cooksey was garnisheed. The garnishee answered that the fund did not belong, to the defendant Vincent Cooksey, but that it was the property of George Cooksey. The cause was tried on the issues raised by the answer of the garnishee, the alleged claimant George Cooksey not having been made a party to the cause.
For a long time prior to this suit defendant Vincent Cooksey was a resident of Mercer county engaged in farming and dealing in stock. The plaintiff became surety for him to the extent of several thousand dollars of which amount plaintiff was compelled as such surety to pay about six hundred dollars. Defendant then removed to Grundy county and afterwards to the State of Arkansas, where the claimant George now resides. At the time George Cooksey removed from Missouri where he had previously resided, to Arkansas in company with his father the defendant Vincent, he was the owner in fee of twenty-six acres of land in Grundy county. On August 19, 1903, he conveyed nine acres of this tract to the defendant, in the deed to which there is a recited consideration of one thousand dollars paid in full. The testimony went to show that it was worth about thirteen hundred dollars.
There was testimony given to show that the purchase price for the land had not been paid and it is claimed that a short time after the date of said deed defendant proposed to reconvey the land to George in payment of the unpaid purchase price; that George agreed to the proposition and thereafter according to the evidence of both parties the land was treated as belonging to George.
For the purpose of sustaining his theory of the case the garnishee introduced evidence tending to prove that after his financial failure in Mercer county the defendant had not been able to retrieve his losses and therefore he could not have and did not pay the purchase price of the land.
The defendant moved back to Missouri and took charge of the land, rented it, received the money, paid the taxes and it is alleged sent the rent mostly to George; but it was shown in the evidence, that he informed the tenant that he was the owner of the land, and he made witness by the of Lickey, his agent to sell the entire twenty-six acres, but told him only nine acres of it was in his name.
The garnishee contracted a sale of the entire twenty-six acres to a Mr. Robinson for the agreed sum of $ 1,800, and defendant and George and wife joined in a deed to the purchaser who paid $ 100 at the time the contract was entered into, and the remainder in a draft to the garnishee, which was garnisheed in his hands under the attachment herein. Other matters arising on the trial will be noticed hereafter.
The finding and judgment were for the plaintiff from which the garnishee appealed.
We will dispose of the first contention of the appellant that the court erred in excluding certain evidence offered by him, by the statement generally, that much of it was wholly incompetent and the residue immaterial. We do not understand that it is our duty to take up such matters in detail, in order to show their competency or incompetency, their relevancy or irrelevancy.
The case was tried by the court upon the theory contained in instruction one given at the instance of plaintiff, which is as follows:
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