Stevens v. Gwathmey

• Decision Date: 31 October 1845
• Citation: 9 Mo. 636
• Parties: STEVENS, GARNISHEE, &c., v. GWATHMEY ET AL.
• Court: Missouri Supreme Court

9 Mo. 636

STEVENS, GARNISHEE, &c.,

v.GWATHMEY ET AL.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

DRAKE, for Plaintiff. 1. The answer of the garnishee is evidence in his favor, and is to be taken to be true until disproved. Davis v. Knapp & Shea, 8 Mo. R. 657. 2. Like an answer in chancery, that of a garnishee must be disproved by the testimony of two witnesses, or one witness and circumstances equivalent to the testimony of another. 2 Story's Eq., 734-44. The witnesses in such case should testify to facts within their own knowledge tending to disprove the answer, apart from the garnishee's statements. 3. Statements made by the garnishee in conversation, variant from his answer, though proven by any number of witnesses, amount to nothing more at last than opposing him to himself; with the advantage in his favor that his answer is under oath. 4. The evidence of the garnishee's conversations should be received with great caution. Greenleaf's Ev. 233. 5. The conversations were held nearly a year before the making of the answer, at a distance from the garnishee's residence, and without his books and papers to refer to. Under such circumstances he may well have been mistaken, and supposed himself indebted to the defendant; and yet, when the necessity of stating the facts on oath arose, and he investigated the matter fully, with the aid of his books and papers, he may find that his conversations were utterly wrong. 6. The admission of such evidence to disprove the garnishee's oath, operates a complete and most injurious surprise upon him. He is required to state in his answer facts, not whether he had said particular things; and when confronted with evidence of his conversations, to disprove the facts stated, he must of necessity be taken by surprise; and he is debarred the opportunity, which he might otherwise be enabled to embrace successfully, of showing by other testimony that the conversation was essentially different from that represented by the plaintiff's witnesses, or of impeaching their credibility. 7. The garnishee stands in the position of a witness as well as a party, and is entitled to the benefit of that rule of law, that before a witness can be contradicted by evidence of statements made by him contrary to his evidence, he shall be questioned as to the statements alleged to have been made by him, and time, place, and circumstances specified, so that he may recollect and explain what he had formerly said. Greenleaf's Ev. 514-15-16; Able & Isbell v. Shields, 7 Mo. R. 120. 8.

The law will not presume in any case that a man has sworn falsely; but where he is shown to have made statements in conversation different from those made under oath, it presumes that if permitted he could satisfactorily explain the conversation. In this case opportunity for explanation was utterly denied to the garnishee. 9. The cases of Greer v. Mullikin, 5 Mo. R. 493, and of Martin v. Barr, 5 Mo. R. 102, are held to be in point here. In those cases the effort was made to give evidence against parties, of statements made by them under oath as witnesses, and this court decided that it could not be done. 10. The conversations of the garnishee indicated manifest ignorance of his rights, in the supposition, that because the defendant had advanced money on account of the partnership, he was, therefore, indebted to the defendant; a supposition not sustained by any legal principle. 11. A conviction of perjury cannot be had upon evidence merely of the conversations of the witness, different from his oath; because the evidence falls short of proving the oath false. If insufficient in that case, the same kind of evidence should be insufficient in this. Roscoe's Crim. Ev. 687. 12. To the benefit of all these objections the garnishee is peculiarly entitled, because he is not interested in the result of the case; it being immaterial to him, whether he pays the amount of the indebtedness to the defendant, or to the plaintiff in the attachment. 13. But if all other points in the case are decided against ths garnishee, it is still unquestionably true, because stated in the answer and not denied, but, on the contrary, sustained by the plaintiff's evidence, that whatever indebtedness may have existed, was on an unsettled partnership account. For any such claim the defendant could have no action against the garnishee, and unless the defendant had a cause of action against the garnishee, the latter could not be held. Story on Part. 322; Collyer on Part. 143; Gow on Part. 87; Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438. 14. A garnishee cannot be charged with interest on an indebtedness to the defendant, which may be found against him. Willings v. Consequa, 1 Peters' C. C. R. 301; Norris v. Hall, 18 Maine R. 332.

MCBRIDE, J.

Gwathmey, Forbes & Co. brought their action against F. C. Steinback, in the St. Louis Circuit Court, and garnisheed Robert Stevens as the debtor of said Steinback. On the 9th May, 1844, Stevens filed his answer to the interrogatories propounded to him, denying his indebtedness except for a small amount, and on the 10th of the same month the plaintiffs filed their traverse to the answer. On the 14th March, 1845, neither party requiring a jury, the cause was submitted to the court, when the court found the answer to be untrue, and assessed the damages of the plaintiffs to the sum of $1,523 45, and entered judgment against Stevens for the same. A motion was made to set aside the verdict for the following reasons: 1. Because the verdict is against law. 2. Because the verdict is against evidence. 3. Because the verdict cannot, by the law of the land, be rendered against a man for an unsettled and unliquidated balance of a partnership account, which the indebtedness of the garnishee herein, if any existed, was shown to be. 4. Because the verdict is against the weight of evidence. 5. Because the court erred in refusing to decide the first four points of law, in favor of the garnishee, which were prayed by him. The motion being overruled the defendant excepted, and has brought the cause to this court by writ of error.

The bill of exceptions shows that on the trial the defendant prayed the court to decide the following points of law for him: 1. That the answer of garnishee must be taken to be true until disproved, and it cannot be disproved by evidence of the garnishee's admissions, made in conversation before the making of the answer, unless such admissions be connected with proof aliunde, of indebtedness to the defendant. 2. That the oath of the garnishee cannot be proven to be false, by evidence of admissions made by him in conversation before the answer was sworn to. 3. Where a party's conversations are given in evidence to disprove his oath, without other evidence to corroborate the truth of the conversations, the jury must presume the oath to be true. 4. That no interest can be allowed against the garnishee on any sum in which he may be found indebted to the defendant. 5. If the jury believe from the evidence that the alleged indebtedness of the garnishee to the defendant, was on account of a partnership existing between the garnishee and defendant, the affairs of which are yet unsettled, and that such indebtedness has not been ascertained upon a settlement of the affairs of the co-partnership, and liquidated between the partners, the plaintiff cannot recover against the garnishee. The court decided the fifth point for the garnishee, but refused so to decide the first four, to which refusal the garnishee excepted.

We have not thought it necessary to set out the answer of Stevens, and the exhibits filed therewith, nor the evidence introduced by the plaintiffs on the trial, as there was an admitted conflict between the testimony and the answer; this court having so frequently held, that where...