Weil v. Posten

Citation77 Mo. 284
PartiesWEIL, Appellant, v. POSTEN, Garnishee of Beckett.
Decision Date30 April 1883
CourtUnited States State Supreme Court of Missouri

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.


Caldwell, Strong & Mosman for appellant.

Wm. Heren for respondent.


Appellant obtained a judgment against R. T. Beckett for $151.10 with interest at six per cent, in the Andrew circuit court August 10th, 1873. Pending the action, which was by attachment, and on December 14th, 1874, the respondent was summoned as garnishee, and July 13th 1873, filed the following answers to interrogatories:

“At the time I was summoned as garnishee of said Robt. T. Beckett in this cause, I had not in my hands, nor have I since had any goods, chattels, property, effects or credits of the said Beckett in my possession or under my control, except as hereinafter stated. That said Beckett did, prior to my being summoned as garnishee, sell, assign and transfer to me a draft or check drawn on the Globe Insurance Company in Chicago, Illinois, for $1,500, for the purpose of paying me an indebtedness of $400 with interest thereon, which the said Beckett was then owing me, and was then shortly due and payable to me; and for the purpose also of securing me in liabilities that I had incurred as security for said Beckett, a part of which security debts were then due and had been paid. (Here follows a detailed statement of the debts.) Wherefore from the promises aforesaid, garnishee says that, at the time he was summoned as garnishee of said Beckett, the said Beckett was owing and justly indebted to said garnishee in the several amounts as specified, together with the interest thereon amounting to $1,180; that said garnishee accepted and received said draft or check from said Beckett, in good faith, for the payment of the indebtedness aforesaid to garnishee, and for the payment of said security debts as above stated, which garnishee was bound to liquidate and pay, and has so done as aforesaid. Garnishee states that at the time of the assignment of said draft or check to him by said Beckett, Beckett was wholly and entirely insolvent and unable to pay any of his debts, and still is insolvent. Garnishee states that prior to the service of this garnishment, in this cause, garnishee did, for a valuable consideration, sell, assign and deliver the said draft or check to F. A. Vanhusen. Garnishee says that before the said draft or check was paid, as this garnishee is informed and believes, the attorney for plaintiff in this cause, W. W. Caldwell, notified the said insurance company not to pay the said draft or check, for the reason, as he alleged, that the policy of insurance had been stolen and the draft or check wrongfully or fraudulent obtained, all of which this garnishee believes was false and fraudulent. Garnishee states that in consequence of such notice, as garnishee is informed and believes, the said company did and has refused to pay said draft or check, or any part thereof, and that the same remains unpaid. Garnishee states that his said assignee of said draft or check, F. A. Vanhusen, has brought suit on said draft or check against said company, and if he should collect the same, there will be some balance in the hands of this garnishee, over and above what will pay and discharge his liabilities aforesaid--what amount this garnishee cannot answer, not knowing the costs and expenses of collecting the same, and of this litigation; and if the assignee should fail to collect such draft or check from said company, then there will be nothing coming from garnishee, as the garnishee will be liable to said Vanhusen, on his assignment of said draft or check, and will have nothing in his hands or under his control belonging to or coming to the said Beckett. That when served, he was not indebted in any sum due or to become due, only as set out in the foregoing answer.”

To this answer the appellant filed the following denial: Plaintiffs admit that garnishee sold and transferred the draft for $1,500, for value, to Vanhusen as alleged in the garnishee's answer, and deny each and every other allegation in said answer stated, and pray for judgment for their debt.”

The case was tried by the court. On the trial the garnishee offered to testify, when appellants objected, and prayed judgment on the pleadings for their debt, because the answer admitted that the garnishee had sufficient money in his hands belonging to Beckett to satisfy the debt, but the objection was...

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