Southern Bank of Missouri v. McDonald

• Decision Date: 31 March 1870
• Citation: 46 Mo. 31
• Parties: THE SOUTHERN BANK OF MISSOURI, Defendant in Error, v. MCDONALD, Garnishee, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 31

THE SOUTHERN BANK OF MISSOURI, Defendant in Error,

v.MCDONALD, Garnishee, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Lackland, Martin & Lackland, for plaintiff in error, cited McDonald v. Gronefeld, 45 Mo. 28; Bryant v. Harding, 29 Mo. 347; Bryan v. Miller, 28 Mo. 32; How v. Dorsheimer, 31 Mo. 349.

E. A. Lewis, for defendant in error, cited Martin v. Michael, 23 Mo. 50; Bentley v. Goodwin, 38 Barb., N. Y., 633; Melville v. Brown, 1 Harrison, 363; Brinkerhoff v. Brown, 4 Johns. Ch. 671; Hadden v. Spader, 20 Johns. 555; Perpet. Ins. Co. v. Cohen, 9 Mo. 421, 441; Smith v. Chapman, 6 Porter, 365; Betts v. Brown, 5 Ala. 414; Weimer v. Pritchett, 16 Mo. 252; Gates v. Kirby, 13 Mo. 175; Weil v. Tyler, 38 Mo. 558; Gen. Stat. 1865, p. 671, § 19.

BLISS, Judge, delivered the opinion of the court.

The plaintiff obtained a judgment against defendant, Dennis McDonald, for some $11,000; issued execution, and sold property to satisfy it in part, and, after the return day of the execution, garnisheed said James McDonald, and, upon his acknowledgment that he had money in his hands belonging to said Dennis McDonald, obtained judgment against him, as garnishee, for some $2,900. Calloway and Robbins also obtained judgments against said Dennis McDonald, and appeared in court and opposed the rendition of the judgment against the garnishee, and afterward filed a motion to set it aside, upon the ground that the execution, having expired, was a nullity; but the court below upheld the execution, and held also that said Calloway and Robbins were outsiders, and had no such interest as would authorize their intervention. For this ruling the said Calloway and Robbins prosecute this writ of error. The record is complicated with many other proceedings that do not materially affect the question, and their history is unnecessary.

Since the decision in McDonald v. Gronefeld, 45 Mo. 28, it is not claimed that the extension of executions by the act of March 23, 1863, had any other effect than to extend the time in which land that had been levied on might be sold, and that it did not authorize a new levy after the ordinary time for the return; nor could it authorize a garnishment after such period. The judgment, then, against James McDonald, in garnishment, was irregular, and should not have been entered.

Had, then, Calloway and Robbins any such interest as to authorize them to thus interfere in the present suit and prevent the execution of this irregular judgment? They had each obtained judgments against Dennis McDonald, and served process of garnishment upon executions issued by them, and after its expiration, just as was done by the plaintiff. But perceiving the irregularity of this proceeding, they did not file interrogatories, but obtained a new execution, with a new service of garnishment upon said James McDonald, but could not obtain a judgment against him, for the reason that judgment had already been entered in favor of the bank. They then filed their motions to set aside the judgment, setting up its irregularity, also their own proceedings, and averring the insolvency of Dennis McDonald. Their motion was heard and granted, but the order granting it was set aside; the case was again docketed, and judgment again rendered against the garnishee.

The whole proceedings show that Calloway and Robbins, who make the motion and bring the record here by writ of error, are not only judgment creditors, but that their debtor is insolvent, and that the judgment upon garnishment, which they seek to set aside, stands in the way of the collection of their claims. They have, then, a clear interest in the matter; and if they can not come in and thus seek to remove the obstacle in the way of collecting their debts, it must be because no one not a party to a proceeding can be allowed to present a motion in relation to such proceeding. But those who are not parties to the record are not always thus excluded. Counsel for the plaintiffs in error have cited us to several cases in our own court where motions have been sustained, presented by judgment creditors, to set aside, for irregularity, judgments rendered by confession in favor of other parties (Bryant v. Harding, 29 Mo. 347; Bryan v. Miller, 28 Mo. 32. In How v. Dorsheimer, 31 Mo. 349, the particular motion was overruled; but the right, in a proper case, to present such motion was fully sustained.

If a judgment creditor has such an interest in the matter as to authorize a motion on his behalf to set aside a judgment in the way of the collection of his debt, I can see no reason why an irregular judgment upon garnishment, which operates in the same way against a creditor, may not also be removed upon his motion. Such motions are allowed in other States. (Taylor v. Knox, 1 Dal. 158; Fairfield v. Baldwin, 12 Pick. 388.) The practice in this respect is reviewed at some length in Walker, etc., v. Roberts, 4 Rich, S. C., 561, and the court says: “From the case cited it is shown that a junior attaching creditor may except to the illegality of a...