Thomas v. Wheeler

• Decision Date: 28 February 1871
• Citation: 47 Mo. 363
• Parties: JOHN THOMAS, Appellant, v. CHARLES WHEELER, INTERPLEADER, ETC., Respondent.
• Court: Missouri Supreme Court

47 Mo. 363

JOHN THOMAS, Appellant,

v.CHARLES WHEELER, INTERPLEADER, ETC., Respondent.

Supreme Court of Missouri.

February Term, 1871.

Appeal from Livingston Court of Common Pleas.

Broaddus, Pollard & Wait, for appellant.

J. McFerran, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff, Thomas, having obtained judgment against John Wheeler, garnished Patterson for the purpose of procuring satisfaction of his debt. Charles Wheeler appeared and filed his interpleader, and claimed that the debt of Patterson was due and owing to him, and not to John Wheeler. It appears from the record that John Wheeler sold to Patterson a certain piece of land, and in payment, at the request of the said John Wheeler, Patterson executed his promissory notes to Charles Wheeler to satisfy a pre-existing indebtedness which, it is alleged, John owed to Charles. The issue was whether these notes were not made payable to Charles for the purpose of defrauding the creditors of John, and whether John really owed Charles a valid and subsisting debt. There were two trials in the court below, and in each, by their verdict, the jury found in favor of the interpleader, sanctioning the good faith of the transaction and awarding the notes to him as the rightful and absolute owner.

The record is bungled and confused, and principally taken up with facts which it is not our purpose to review. There are many points of law presented, some of which are not properly saved, and others utterly unworthy of consideration. The main ones, however, which have any bearing on the merits, will be examined.

It is insisted, first, that the court erred in not sustaining the motion of the plaintiff to suppress certain depositions. There is no objection to the notice given, and a commission was regularly sued out. The caption to the deposition states that the witnesses were produced, sworn and examined pursuant to the commission and notice, and at the place designated in the notice. The officer taking the depositions, in his certificate appended to each deposition, certifies to the residence of each witness, that the witness was sworn to testify in the cause, and that the deposition was reduced to writing and subscribed by him in the presence of the officer on the day and between the hours (naming them) mentioned in the notice. This, I think, was a sufficient compliance with the statute, and I see no error in the ruling of the court. (1 Wagn. Stat. 526, § 22; Jolliffe v. Collins, 21 Mo. 338; Moss v. Booth, 34 Mo. 316.)

The next objection insisted upon is that the court erred in not striking out certain parts of the depositions. The same objection was made to like testimony adduced on the trial from the witnesses...