Tutt v. Couzins

• Decision Date: 31 March 1872
• Citation: 50 Mo. 152
• Parties: DENT G. TUTT, Respondent, v. JOHN E. D. COUZINS, GARNISHEE OF NICHOLAS WALTON, Appellant.
• Court: Missouri Supreme Court

50 Mo. 152

DENT G. TUTT, Respondent,

v.JOHN E. D. COUZINS, GARNISHEE OF NICHOLAS WALTON, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

A. N. Crane, with C. S. Hayden, for appellant.

The assignment shown does not conform to the statute (Wagn. Stat. 794, § 34) and is invalid.

The statute requires the assignment to be on the thing assigned, so that the judgment itself will always carry with it a badge of ownership.

It is claimed that if the Legislature had intended the assignment of judgments to be placed in the record, it would have required a margin for that purpose also. This conclusion is not reasonable; on the contrary, it is more reasonable to suppose that the Legislature omitted to require a margin because one was already provided. Certainly no law was necessary about the margin.

It is contended that the statute is in a manner cumulative; that is, that any form of written assignment is good between the parties. But we say that the statute covers the whole subject and is mandatory, and unless it is intended by the statute to make an exclusive method, it means nothing. Certainly the statute was not intended to add another method for assigning a judgment, but to make one legal way for doing the thing.

Slayback & Haeussler, for respondent, cited in argument Baker v. Stonebraker's Adm'r, 34 Mo. 175; Love v. Fairfield, 13 Mo. 305.WAGNER, Judge, delivered the opinion of the court.

Tutt obtained judgment against Walton on the 24th of May, 1861, and on the 10th of June, 1861, he assigned the judgment to Dean. On the following November, 1861, Dean caused execution to be issued on the judgment in the name of Tutt, to his use, and Couzins was summoned as garnishee. Tutt was not a party to the proceeding, and had no notice thereof. After several years' litigation Couzins, the garnishee, was discharged, and an allowance of $200 as attorney's fees was made by the court in his favor. Pending the controversy Dean died, and the case was revived and conducted in the name of the administrator. The judgment of allowance was rendered against the estate of Dean, and it was certified to the Probate Court for classification. Dean's estate was insolvent, and in March, 1871, Couzins' counsel appeared in the Circuit Court and moved to have the judgment which had been taken against Dean's estate amended and entered up against Tutt. This motion was sustained by the court at the special term, and the amendment was made; but on the case being carried to the General Term, the order was reversed and an appeal taken to this court.

First, it may be observed that the last proceeding was wholly irregular so far as Tutt was concerned, for he was not notified and was not present in court. When the final judgment was taken and...