Todd v. Missouri Pac. Ry. Co.

• Decision Date: 27 November 1888
• Citation: 33 Mo.App. 110
• Parties: CHARLES B. TODD, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 110

CHARLES B. TODD, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. DANIEL DILLON Judge.

REVERSED.

Henry G. Herbel, for the appellant.

Neither the justice nor the circuit court acquired jurisdiction of the debt due Pearce. The return of the constable on the writ of attachment does not show that he attached anything in garnishee's hands. This is essential to a valid attachment. Norvell v. Porter, 62 Mo. 311; Keane v. Banking House, 4 Mo.App. 507; Brecht v Corby, 7 Mo.App. 300; Masterson v. Railroad, 20 Mo.App. 655. The averment that the " services were rendered in the town of Denison, in the state of Texas (through which state garnishee's line of railway runs) under and in pursuance of a contract there made between this garnishee and said Geo. W. Pearce, by which it was provided that said wages were to be paid said Pearce monthly at said town of Denison, in said state of Texas; that said wages are now payable to said Pearce at said town of Denison, in the state of Texas, and not elsewhere," establishes the situs of the debt in the state of Texas, and under the decisions of this court in the cases of Fielder v. Jessup, 24 Mo.App. 91; Bank v. Wickham, 23 Mo.App. 663, excludes the jurisdiction of our courts. Wilson v. Joseph, 107 Ind. 490; Hager v. Adams, 30 N.W. 37; Frazee v. Rice, 47 Md. 205; Snook v. Switzer, 25 Ohio St. 516; Railroad v. Maltby, 34 Kan. 125. The exemption plea in the answer also constitutes a complete defense to this action. If, as the answer alleges, the wages in controversy are exempt from execution in the state of Texas, where they were earned, garnishee cannot be charged here on that account, as that would subject it to a double liability and work an injustice, which the law will not countenance. Minor v. Coal Co., 25 Mo.App. 78; Fielder v. Jessup, 24 Mo.App. 91.

John B. Roeder, for the respondent.

The extended return of the constable is not only very full, but technically exact, and shows not only that the garnishee was summoned, but that the debt was attached in its hands. R. S., 1879, secs. 420, 748, 749. Sustaining the motion for judgment was a trial of this cause and equivalent to a jury finding under sections 2533 and 2534, Revised Statutes, 1879, and the subject of garnishment being money, as distinguished from property or choses in action, judgment might properly have been entered against the garnishee, at the time the motion was sustained, under section 2520, Revised Statutes. Birtwhistle v. Woodward, 95 Mo. 113.

OPINION

THOMPSON J.

This was a proceeding commenced before a justice of the peace, by attachment, against George W. Pearce as principal defendant, and against the Missouri Pacific Railway Company as garnishee. There was a judgment against the principal defendant and also a judgment against the garnishee on its answer, from which it prosecutes this appeal.

At the outset, there is a question whether the return of the constable shows a valid levy of the writ, such as was necessary to give the court jurisdiction. The return on the attachment does not show that the constable attached any property of the defendant, by garnishment or otherwise; but it merely shows that the constable executed the writ by summoning the garnishee. This was no return such as showed jurisdiction over the res, and authorized the court to proceed to judgment against the defendant (Keane v. Bartholow, 4 Mo.App. 507; Norvell v. Porter, 62 Mo. 309; Masterson v. Railroad, 20 Mo.App. 655); unless we are to hold that it was helped out by the return upon the notice of garnishment, which set forth that the constable attached the goods, chattels, rights and credits, of the defendant in the hands of the garnishee. It is true that it was held in Johnson v. Gilkeson, 81 Mo. 59, that the irregularity of indorsing the return of an attachment upon the petition instead of the writ, was not fatal to the jurisdiction, but in that case there was but one return; here there are two, and the one which professes to be a return to the attachment, and which is indorsed on the writ of attachment, is insufficient. The garnishment is not a judicial writ; it is not sued out by the plaintiff; but it is a mere notice issued by the levying officer; and the return indorsed on this notice cannot, we think, be held sufficient to help out the want of a good return to the writ. But, as this defect is capable of being cured by an amendment made by the constable under leave of the court, according to the fact (Brecht v. Corby, 7 Mo.App. 305; Transier v. Railroad, 54 Mo. 189; Turner v. Railroad, 78 Mo. 578), we should probably remand the cause in order that this might be done, if it were not for another consideration which is fatal to any judgment against this garnishee.

Before coming to this question, it is necessary to get out of the way an objection raised by the respondent. The garnishee filed an answer admitting a certain amount due the principal debtor, and setting out the defenses hereafter stated. The plaintiff, after having filed a denial, moved for judgment on the answer. On the sixth of July the court sustained this motion and ordered the garnishee to pay into court, for the use of the plaintiff, the sum of $39.92. The garnishee having failed, and, in open court, declined so to do, the court, on the seventeenth of July, entered judgment against it for the above-named sum. On the same day the garnishee filed a motion for new trial and a motion in arrest of judgment, both of which were overruled, the garnishee excepting. The contention of the respondent now is that the order of the court sustaining the motion for judgment on the answer and requiring the garnishee to pay the money into court was in the nature of a verdict, and that the motions for new trial and in arrest of judgment not having been filed within four days there-after were not filed within four days of the trial,...