Smith v. Sterritt

• Decision Date: 31 January 1857
• Parties: SMITH, INTERPLEADER, Respondent, v. STERRITT, Appellant.
• Court: Missouri Supreme Court

24 Mo. 260

SMITH, INTERPLEADER, Respondent,

v.STERRITT, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. An appeal will lie from the decision of a justice of the peace on an interplea concerning property or effects garnished by virtue of an execution.

2. No formal assignment of an account is necessary; any act showing an intent to transfer the party's interest is sufficient.

3. An assignee of an account, assigned for value previous to a garnishment by virtue of an execution against the assignor, has a superior right to the plaintiff in the execution, although the assignee may not have given notice of the assignment previous to the garnishment.

Appeal from Jackson Court of Common Pleas.

Wm. B. Sterritt recovered a judgment before a justice of the peace against Henry Smith. Execution issued June 2d, 1855, and on the same day W. M. Belt was summoned as garnishee. Belt answered, admitting an indebtedness to H. Smith at the time of the service of garnishment, in the amount of $55, for goods sold. After this answer was put in by Belt, A. E. Smith appeared before the justice and interpleaded, claiming the debt due from Belt as due to himself by virtue of an assignment from Henry Smith. Judgment on this interplea was, after a verdict by a jury in favor of the interpleader, Smith, rendered in favor of the interpleader; and an appeal was taken to the Commons Pleas Court of Jackson county. Upon the trial of the interplea, the interpleader, Smith, in proof of the assignment from Henry Smith, together with other evidence, introduced the following instrument: “Independence, Mo., Feb. 19th, 1855. For value received, I assign to Asbury E. Smith all the accounts and indebtedness in this. (Signed) Henry Smith.” This assignment was written on the front leaf of a day-book of the said Henry Smith, which was also introduced in evidence. Sterritt, the defendant in the interplea, duly excepted to the admission of the assignment above set forth.

C. H. Thornton, for appellant.

I. The court erred in permitting the instrument of writing purporting to be an assignment to be read in evidence. It was too vague, uncertain, and general in its terms to convey any interest; especially as the parol evidence introduced by the interpleader showed that all the items of accounts in the book, on the blank leaf of which the assignment was written, were, prior to its execution, transferred to the ledger. (See case of Crow & Lewis v. Ruby, 5 Mo. 485.)

II. The court erred in permitting the items of account in the day-book to be read in evidence. If secondary evidence of this kind was admissible at all, the ledger to which the items had been posted was certainly the better evidence of the kind.

III. Even if the law permitted the interpleader to interplead in a case of this kind, he, by his own evidence, showed that he had no right to complain of the garnishment, as there was no notice from him or the assignor of the intended transfer of the debt, until, not only after the debtor had been garnished, but had answered to the garnishment. (See Richards v. Gregg, 16 Mo. 417; Story on Prom. Notes, 131, note 2; Story's Eq. 1040, 1047, 1057.)

IV. The court had no jurisdiction of the interplea in this case, and should have dismissed it without motion. (See R. C. 1845, p. 672, § 11; Garrison v. McAllister & Co., 13 Mo. 579; Wimer v. Pritchart, Garnishee of Tice, 16 Mo. 253.)

Woodson and Chrisman, for respondent, cited Sickles et al. v. Patterson, 18 Mo. 479; Haase v. Stevens, id. 476; Sautier v. Kellerman, id. 509; Moon v. Turner, 19 Mo. 642; Aiken v. Todd, 20 Mo. 276.SCOTT, Judge, delivered the opinion of the court.

The case of Daggett v. St. Louis Marine and Fire Insurance Co. (19 Mo. 210) is in point to show that on the trial in a justice's court of an interplea concerning property or effects garnished by virtue of an execution, an appeal will lie. That was a garnishment under an execution issued from a justice's court. It may be observed that the provision respecting garnishments, under the act respecting justices' courts, is different in its language from the section on the same subject in the statute in relation to executions. Indeed, the case of Wimer v. Pritchartt (16 Mo. 252) is contrary to the practice both before and since it was made, as is apparent from ...