Smith-Premier Typewriter Co. v. National Cash Register Co.

• Decision Date: 21 March 1911
• Citation: 156 Mo. App. 98,135 S.W. 992
• Parties: SMITH-PREMIER TYPEWRITER CO. v. NATIONAL CASH REGISTER CO.
• Court: Missouri Court of Appeals

135 S.W. 992

156 Mo. A. 98

SMITH-PREMIER TYPEWRITER CO. v. NATIONAL CASH REGISTER CO.

St. Louis Court of Appeals. Missouri.

March 21, 1911.

1. GARNISHMENT (§ 101)—SUMMONS—DATE OF SERVICE.

Where the summonses against defendant and his garnishee were made returnable on a date, so that service thereof on a designated prior date was necessary, and on the hearing of the liability of the garnishee the questions propounded by plaintiff's counsel turned on the condition of the account between the garnishee and defendant on the designated date, and from that time to and including the date of the filing of the amended answer of the garnishee, the court was warranted in assuming that the service on the garnishee and the attempted attachment of the credits of defendant then in the hands of the garnishee were made on the designated date.

2. GARNISHMENT (§ 110)—RIGHTS OF GARNISHING CREDITOR.

A garnishing creditor may hold the garnishee only to the extent of the claim of defendant against the garnishee.

3. GARNISHMENT (§ 164)—LIABILITY OF GARNISHEE TO DEFENDANT—EVIDENCE.

In garnishment against the employer of defendant, evidence held to show that no money came into the possession of the garnishee, or was in its possession between the date of the service of the summons on the garnishee and the date of the filing of the amended answer of the garnishee.

4. APPEAL AND ERROR (§ 1010)—FINDINGS— CONCLUSIVENESS.

Where the testimony taken by depositions by plaintiff is without contradiction, the court on appeal may review the sufficiency of the testimony to sustain the findings of the trial court vested with power of determining the weight of the testimony.

5. GARNISHMENT (§ 71)—JURISDICTION.

A court without power to render any judgment against a defendant, not personally served and not appearing, is without jurisdiction to enter judgment against the garnishee.

6. ATTACHMENT (§ 66)—JURISDICTION—SERVICE OF PROCESS.

The jurisdiction of the court, in an action by attachment against a defendant served only by publication and not appearing, depends on whether there is a res on which it can act, and where the sheriff fails to find any property which he can seize under the writ, and he does not impound any property or credits of defendant by service of garnishment, there is nothing on which the jurisdiction of the court can act in the case.

7. GARNISHMENT (§ 67)—JURISDICTION—EVIDENCE.

Where, at the date of the issue and service of the notice of garnishment on the garnishee and the attempted attachment of effects of defendant

then in the hands of the garnishee, the garnishee had not only no such effects, but was not indebted to defendant, there was nothing for the attachment to rest on, and the court acquired no jurisdiction; defendant not being personally served and not appearing.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by the Smith-Premier Typewriter Company against one Hassler as defendant and against the National Cash Register Company as garnishee. From a judgment for plaintiff against the garnishee, it appeals. Reversed.

P. P. Taylor and Emil Mayer, for appellant. Peers & Peers, for respondent.

REYNOLDS, P. J.

On the 30th of December, 1907, plaintiff commenced action by attachment against one Hassler on an account for an alleged indebtedness of $85, the action having been brought before a justice of the peace of the city of St. Louis. Summons appears to have been issued on that day to the constable, returnable January 10, 1908. On the latter date, the constable, according to the docket entries of the justice, made return that he had not found the defendant and that he had duly served the National Cash Register Company, attaching in its hands all moneys, etc., due or belonging to defendant, and summoning it as garnishee. On the return day of the summons, January 10th, appellant filed its answer to interrogatories which had been propounded to it, denying that it had money, etc., belonging to defendant at the time of service of the writ or that at the time of answering it owed defendant anything. This answer was denied by respondent, to which appellant replied by a general denial. Thereafter on February 20th, appellant, as garnishee, filed another answer again denying that it had anything belonging to defendant or that it owed defendant anything. Issue was taken on this second answer. An order of publication against defendant was issued January 10th, returnable January 31st, on which latter date the constable made return of publication by putting up four notices of the order of publication in four public places in the city. The case was then continued as against defendant Hassler at various times, until on June 22, 1908, judgment by default was rendered against defendant, who had made no appearance and had never been personally served, for $85, the attachment being sustained. The action against appellant, as garnishee, and hereafter referred to as garnishee, was continued from date to date until this 22nd of June, on which latter date a trial was had and judgment rendered in favor of plaintiff and against the garnishee in the sum of $85, the amount of judgment rendered against defendant. From this the garnishee took an appeal to the circuit court, in which latter court the cause was tried anew before the court, a jury being waived, the trial resulting in a verdict for plaintiff and against the garnishee for $85 and costs, the garnishee being allowed the sum of $15 as its costs for answering. From this judgment the garnishee has duly perfected its appeal to this court, filing a motion for new trial as well as a motion in arrest and duly saving exception on these being overruled.

The evidence in the circuit court was presented solely by depositions, taken on behalf of plaintiff, the depositions being those of the treasurer of the appellant and its book-keeper. By these depositions it appears that defendant Hassler is a sales agent in the employ of the garnishee, on commission, having been so at the time of the service of the garnishment and down to the taking of the depositions, his employment commencing under a contract of date June 20, 1907. The contract was put in evidence by plaintiff as part of the depositions, and is abstracted very fully. It appears by that that Hassler was employed by the garnishee as a sales agent for the sale of cash registers in named territory solely on commissions, it being provided that appellant, the garnishee, may retain out of the commissions coming to defendant $500 as a deposit and security to protect it against loss on amounts charged back, the balance so retained to be paid defendant on final settlement, the company, garnishee, also agreeing to advance Hassler on commissions such sums as it may deem proper and just, charging the advancements to his account. It is further provided that Hassler is to pay his own expenses, the company paying none of his traveling, office or other expenses, for which Hassler is to contract in his own name and under no circumstances to hold the company liable or responsible for them, and it is also provided that Hassler, in proportion to his commission, is to pay his share of all legal collection of commissions and all transportation charges on registers ordered and refused by the customer. It is provided for payment by the company of any debts of the agency, amounts so paid to be charged back to Hassler. Hassler was also to furnish a bond. The agency might be terminated at any time upon written notice.

Respondent, in connection with the deposition, also introduced a statement of the account between the garnishee and Hassler by which account it appears that on the 31st of December, 1907, Hassler owed the garnishee $680. It further appears that on January 2nd and each week from that date on to February 20th, the garnishee had paid Hassler $60 cash, charging him with other amounts and crediting him with commissions. On the 20th of February, it appeared that Hassler owed the garnishee $802.36. The bookkeeper, whose deposition was taken on behalf of plaintiff, respondent here, testified that these weekly payments of $60 cash advanced to defendant were charged to him on account of commissions that may have been or were to be earned, being advances to him. So also the account itself showed. Neither of the witnesses gave any testimony tending to show that these weekly payments were on account of salary. Nor was there any evidence, either by witnesses or by the terms of the contract that defendant was on a salary, and there was no testimony in the case other than by these two witnesses, whose depositions were taken on behalf of plaintiff. Neither of the witnesses gave any explanation than as stated above why these advances were made. Counsel for respondent, and apparently the learned trial court, treat these weekly payments of $60 a week as payments on account of salary and claim that between the time...