Van Winkle v. McKee

• Decision Date: 31 May 1842
• Citation: 7 Mo. 435
• Parties: VAN WINKLE AND RANDALL v. MCKEE.
• Court: Missouri Supreme Court

7 Mo. 435

VAN WINKLE AND RANDALL

v.MCKEE.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS CIRCUIT COURT.

HAMILTON, for Plaintiff.

GAMBLE, for Garnishee.

SCOTT, J.

Van Winkle and Randall obtained a judgment in the St. Louis Circuit Court against Hiram McKee, on which a fieri facias was issued, with directions to summon Jacob Baum as garnishee. Baum appeared, and in answer to the interrogatories exhibited, stated that McKee had made an assignment to him of property and debts for the benefit of his creditors, requiring them, before they should have any interest in the trust, to assent to the assignment, and release McKee from his debts. It was admitted, this assignment was invalid as to the creditors of McKee, for the reason it exacted from them a release of their debts. Baum's answer alleged furthermore, that he, immediately after the assignment, took the property in possession, and proceeded to sell the same, and collect the debts, and then gives a detailed account of the manner in which he executed his trust; claims a credit for payments which he made; acknowledges a balance in his hands, which he claims, and denies that he owes the defendant, McKee, anything. The answer was put in issue, which was tried by the court sitting as a jury, and a verdict and judgment were rendered for the garnishee, to reverse which this writ of error was sued out.

The point has been made, whether a trustee is a debtor, within the contemplation of the eighth section of the act concerning Executors, and consequently liable to be summoned as garnishee under its provisions. That section enacts, when a fieri facias shall be issued, if no property can be found whereof to levy the amount due on the writ, the sheriff shall summon such debtors of the defendant as the plaintiff shall direct, to appear and answer such interrogatories as may be exhibited touching their indebtedness to the defendant in the execution; and further provides, that like proceedings shall be had as are or may be provided in case of garnishees summoned in suits originating by attachments. It is not conceived that any necessity exists for giving this section a broader interpretation than is warranted by its letter and spirit, as there is a forum whose powers are ample, and whose mode of procedure is well suited for affording redress to creditors, whose executions may be hindered by the contrivances of their debtors. This is an attempt to give to courts of law the control and management of trusts. The act of summoning the assignee is an admission that he is a trustee for the debtor in the execution; or at least it assumes, that although the assignment is void as to creditors, yet as between the parties to it, it has had the effect of transferring the property and effects of the debtor. The creditors may treat it as a nullity, and sue out their executions, the liens of which will attach on all property subject to execution, from...