Stevenson v. Standard Adding Mach. Co.

• Decision Date: 01 October 1910
• Parties: STEVENSON v. STANDARD ADDING MACH. CO.
• Court: Missouri Court of Appeals

131 S.W. 162

150 Mo. App. 555

STEVENSON v. STANDARD ADDING MACH. CO.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

Rehearing Denied October 24, 1910.

1. JUSTICES OF THE PEACE (§ 164) — APPEAL — JURISDICTIONAL DEFECT — CORRECTION OF RECORD.

Rev. St. 1899, § 4069 (Ann. St. 1906, p. 2214), provides that on an appeal the justice shall file a transcript of all entries in his docket relating to the case, together with all of the process and other papers filed with him, and section 4071 (page 2214) declares that, on the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall try the same anew without regard to any error or defect in the original proceedings before the justice. Held, that the justice's failure to insert in his transcript on an appeal by a garnishee an entry showing that final judgment was rendered against the principal defendant before judgment against the garnishee, as required by Rev. St. 1899, § 3472 (Ann. St. 1906, p. 1988), was not a jurisdictional defect, and the court therefore properly refused to require the justice to send up a new transcript, and permitted plaintiff to show the fact by the justice's record.

2. APPEAL AND ERROR (§ 150) — RIGHT TO APPEAL — GARNISHEES.

A garnishment proceeding is so far independent of the main action that an appeal may be maintained by the garnishee without reference to the principal defendant.

3. APPEAL AND ERROR (§ 529) — RECORD — WHAT CONSTITUTES.

Judgment against the defendant in the main action is not a part of the record proper in a controversy between the plaintiff and the garnishee.

4. GARNISHMENT (§ 110) — INDEBTEDNESS ATTACHED.

A garnishment only attaches any money or property of the defendant in the hands of the garnishee at the time of the service of the writ, or that may be owing by the garnishee to the principal defendant between that time and the time of filing the garnishee's answer, as provided by Rev. St. 1899, § 3436 (Ann. St. 1906, p. 1976).

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Ellis Stevenson against the Standard Adding Machine Company, garnishee of Edwin J. Gantz. Judgment for plaintiff on appeal from a justice of the peace, and defendant garnishee appeals. Affirmed on condition.

Selden P. Spencer, for appellant. L. C. Kingsland, for respondent.

NORTONI, J.

This is a garnishment proceeding. On issue made, judgment was given for plaintiff against the garnishee, and from this judgment it appeals.

It appears the garnishment originated incident to an attachment suit instituted by the plaintiff herein against Edwin J. Gantz, defendant in the justice court. A proper service was had on Gantz, the defendant in attachment, but he failed to appear to the action, and a judgment by default was given against him, from which judgment no appeal was prosecuted. The garnishee, having been summoned as the debtor of the defendant in the principal suit, made answer to the effect that it owed him nothing. This answer was properly denied, and an issue made thereon in accordance with the statute. Upon a trial of this issue, the justice gave judgment for plaintiff, and the garnishee prosecuted an appeal to the circuit court. In making up the transcript of the cause to be filed in the circuit court on appeal, it appears the justice omitted to incorporate therein the judgment against defendant Gantz in the principal action. The transcript which was lodged in the circuit court contains a recital of all things material to the issue between the plaintiff and the garnishee. Among other things, it shows a final judgment was given by the justice against the garnishee, and proper entries appear allowing and perfecting its appeal to the circuit court.

Upon the opening of the trial in the circuit court, plaintiff introduced in evidence a transcript of the proceeding and judgment in the main or principal action by attachment by this plaintiff against the defendant Gantz. This transcript, duly certified by the justice before whom the cause was tried, shows the suit to have been instituted in attachment and all matters essential thereto, and further discloses a judgment against the defendant therein in favor of the plaintiff. The garnishee objected to the introduction of this transcript in evidence, and, in connection therewith, moved the circuit court for a rule on the justice of the peace to certify up a true transcript of all proceedings had before him touching both the principal action and the garnishment. In support of this motion, an affidavit was filed to the effect that several days after the suit was tried before the justice his docket was examined, and no judgment against the defendant in attachment then appeared therein. Our statute on garnishment provides: "No final judgment shall be rendered against a garnishee until there shall be final judgment against the defendant." Section 3472, Rev. St. 1899 (section 3472, Ann. St. 1906). Because of this statutory requirement and of the omission of the justice's transcript, originally filed on appeal, to recite a judgment against the defendant in attachment, the garnishee insisted on his right to a rule on the justice for an amended transcript. The court declined to make an order upon the justice, proceeded with the case as though the transcript then on file was sufficient, and permitted plaintiff to prove the fact that a judgment had been entered against defendant in attachment in the main action by the certified copy of the proceedings of the justice in that behalf.

The argument of the garnishee does not go to the competency of the transcript introduced for the purpose of proving the judgment against the defendant in the main action was given before that against the garnishee, but is to the effect that, at all events, it was entitled under the statutes to a rule on the justice to send up a more perfect transcript to the end of conferring jurisdiction on the circuit court to proceed. Touching this matter, it is argued that the original transcript filed in the circumstances with the appeal was wholly insufficient, and that it may not be supplied by any subsequent transcript furnished by the justice without an order of the circuit court for the purpose. We believe the matter should be determined by ascertaining whether or not the omission to recite this fact from a transcript filed with the appeal of the garnishee goes to the jurisdiction of the circuit court; for, if it does, then the fact that a judgment had been given against defendant in attachment before that against the garnishee may not be shown by the transcript of the justice introduced in evidence. Our statute (section 4069, Rev. St. 1899 [Ann. St. 1906, p. 2214]) provides that, on an appeal being allowed by the justice of the peace, it shall be his duty to file in the office of the circuit court having appellate jurisdiction within six days thereafter a transcript of all entries made in his docket relating to the case, together with all of the process and other papers relating to the suit and filed with the justice. Section 4071 (page 2214) provides, upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause and shall proceed to hear, try, and determine the same anew without regarding any error, defect, or imperfection in the original summons or the service thereof or on the trial, judgment, or other proceedings of the justice or constable in relation to the case. Under these statutes, it is obvious that the court was possessed of jurisdiction over the cause, for a sufficient transcript was filed therewith to this end. Both parties appeared there as they had before the justice, and no one can doubt the jurisdiction over the person. That the court had jurisdiction of the subject-matter is obvious.

It is argued that, though the court becomes possessed of the cause on the filing of even a defective transcript and original papers in accordance with the statute quoted, it frequently occurs that such transcripts are so defective as to require amendment, and that the courts have ruled where such defects exist there is no authority in the justice to supply the defects in the original transcript except under an order of the appellate court. It is true there are decisions which go to this effect. For instance, in Norton v. Porter, 63 Mo. 345, the transcript of the justice filed on appeal was defective in respect to a jurisdictional matter, for it did not appear therefrom that some of defendants had appealed. The court ruled that the justice was without authority to amend the transcript on his...