Walkeen Lewis Millinery Co. v. Johnson

• Decision Date: 14 April 1908
• Citation: 109 S.W. 847,130 Mo. App. 325
• Parties: WALKEEN LEWIS MILLINERY CO. v. JOHNSON (FIRST NAT. BANK OF MONETT, Garnishee).
• Court: Missouri Court of Appeals

109 S.W. 847

130 Mo. App. 325

WALKEEN LEWIS MILLINERY CO. v. JOHNSON (FIRST NAT. BANK OF MONETT, Garnishee).

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. GARNISHMENT — ENTRY OF JUDGMENT — PRIOR ORDER FOR PAYMENT.

Under Ann. St. 1906, § 3439, providing that, when in garnishment proceedings it is found that garnishee has money or property of defendant, he may discharge himself before final judgment by paying or delivering all of it, or so much thereof as the court shall order, to the sheriff; section 3440 providing that, if it appears garnishee was indebted to defendant, the court may order payment of the amount owing to the sheriff or into court at such time as it may direct; and section 3452 providing that, if on the trial it appears that the garnishee had property or money of defendant, findings of what property and the value thereof, or of what money he has, shall be made, and unless he discharges himself, as provided by section 3439, or, within such time as the court shall direct, as provided in section 3440, pays or delivers the property or money, then the court shall enter judgment against him—the entry of judgment against garnishee at the same time the facts are found, and without a prior order to pay the fund to the sheriff, is an irregularity for which it should have been set aside.

2. APPEAL—MATTERS AFFECTING MERITS.

The entry of judgment against garnishee without a prior order for payment of funds in his possession to the sheriff or into court, in contravention of Ann. St. 1906, §§ 3439, 3440, 3452, is an irregularity affecting the merits of the controversy, within the statute declaring the policy that judgments shall not be reversed for mere technical quibbles; such entry subjecting him under section 3457 to liability for costs.

3. SAME—"INFORMALITY" IN ENTERING JUDGMENT.

Entering judgment against garnishee without a prior order to him to make payment, in contravention of Ann. St. 1906, §§ 3439, 3440, 3452, is not a mere "informality" in entering judgment, for which section 672 provides judgments shall not be reversed.

Goode, J., dissenting.

Appeal from Circuit Court, Barry County; F.C. Johnson, Judge.

Action by the Walkeen Lewis Millinery Company against Blanche Johnson, the First National Bank of Monett being made garnishee. From a judgment against garnishee, it appeals. Reversed and remanded, with directions.

Mayhew & Sater, for appellant. Peel & Sizer, for respondent.

NORTONI, J.

Plaintiff instituted this suit by attachment against the defendant in the circuit court of Barry county. The First National Bank of Monett was duly summoned as garnishee in the case, and on Monday, September 4, 1905, the first day of the term, plaintiff filed in the court and exhibited to the garnishee proper interrogatories with respect to the funds, etc., of the defendant in its hands. During the same term, and on the 8th day of September, the garnishee filed its answer to such interrogatories, denying that it had any property, funds, money, etc., of the defendant in attachment in its possession or under its control. In due time thereafter, and during the same terms, plaintiff in attachment filed its reply to the answer of the garnishee, in which it alleged in substance that at the time of the service of the garnishment defendant bank had in its possession $1,621.30 of moneys belonging to the defendant in attachment. There appears to have been no further pleadings on the part of the garnishee; that is to say, the garnishee filed no denial to the plaintiff's reply as contemplated by section 3451, Rev. St. 1899 (section 3451, Mo. Ann. St. 1906). However that may be, the issue presented by the garnishee's answer and reply of the plaintiff in attachment were heard by the court without a jury during the same term on September 22d as though such denial had been filed. The record discloses a judgment on the merits for $318.40, and in the attachment suit judgment was given by the court in favor of the plaintiff and against the defendant in attachment during the same term of court on the 8th day of September. The trial on the issues between plaintiff in attachment and the garnishee coming on to be heard on September 22d, the judgment entered discloses, first, that the court found the plaintiff had recovered judgment against defendant in the attachment suit during that term on September 8th for $318.40, with 6 per cent. interest, etc. It further appears therefrom that the court, having heard the evidence, found that on the day of the service of garnishment the garnishee had on deposit in its bank and in its possession the sum of $1,621.30 in money belonging to the defendant in attachment, and that the garnishee had refused, and still refuses, to pay over to the sheriff who served notice of the garnishment any portion thereof, etc. The court thereupon gave judgment for the plaintiff in attachment against the garnishee for the sum of $319 to draw 6 per cent. interest; this being the amount then due on the judgment of plaintiff against the defendant in attachment. The costs in the cause were assessed at $121.79, and judgment entered against the garnishee therefor. An execution was ordered issued against the garnishee bank for such amount and costs. The garnishee appeals, and insists the trial court should not have entered such judgment on the very day of, and simultaneously with, the finding on the issue against it.

It is argued that the statutes provide the court shall give judgment against the garnishee only after it has failed to comply with the order of the court directing it to pay the fund to the sheriff into court, or execute a bond for its proper delivery, etc. In this connection it is important to read and consider three sections of our statute on garnishment together. By section 3439 it is provided substantially that when, upon a trial of the issue, as had in this case, the court or jury find effects, money, or debts belonging to the defendant in attachment to be in the hands of the garnishee, the garnishee may discharge himself before final judgment by paying or delivering all of it, or so much thereof as the court shall order to the sheriff, etc. Section 3440, in so far as pertinent here, provides substantially that, if it appears the garnishee was indebted to the defendant in attachment, the court may order payment of the amount owing by the garnishee to the sheriff, or into court at such time as the court may direct or may permit the garnishee to retain the same on his executing a bond to the plaintiff with approved security, conditioned that the property shall be forthcoming, or the amount paid as the court may direct, etc. Section 3452, which authorizes the court to enter judgment against the garnishee under certain circumstances, expressly contemplates the proceedings mentioned in the two sections last above referred to. It is as follows: "If, upon such trial, it shall appear that property, effects or money of the defendant are found in the hands of the garnishee, the court or jury shall find what property or effects, and the value thereof, or what money are in his hands, and unless he discharge himself, as provided in section 3439, by paying over or delivering the same to the sheriff, or unless he shall, within such time as the court shall direct, as provided in section 3440, pay or deliver up such...