Wimer v. Pritchartt

• Decision Date: 31 March 1852
• Citation: 16 Mo. 252
• Parties: WIMER, Appellant, v. PRITCHARTT, GARNISHEE OF TICE, Respondent.
• Court: Missouri Supreme Court

16 Mo. 252

WIMER, Appellant,

v.PRITCHARTT, GARNISHEE OF TICE, Respondent.

Supreme Court of Missouri.

March Term, 1852.

1. A party cannot interplead in a cause to claim assets in the hands of a person summoned as garnishee on execution. The garnishee must answer at his peril.

2. Where a stakeholder in a wager is summoned as garnishee of the winning party, and the wager was determined without any demand upon the garnishee by the losing party for the money deposited by him, and he makes no claim, judgment will be given against the garnishee for the whole sum in his hands.

Appeal from St. Louis Court of Common Pleas.

At the February term, 1849, of the St. Louis Court of Common Pleas, the appellant recovered judgment against John H. Tice, for the sum of four hundred and nineteen dollars and eighty-five cents. On this judgment execution issued, returnable to the September term of the St. Louis Court of Common Pleas, and William H. Pritchartt was summoned as garnishee. The answer of the garnishee confesses that he had, at the time he was summoned, the sum of two hundred dollars, which had been deposited with him, as a stakeholder, by Tice and another person, the whole to be paid to Tice, upon the event of Firman A. Rozier receiving more votes at the congressional election, in August 1850, than James B. Bowlin should receive at the same election. The answer further admits that Rozier did receive more votes than Bowlin. Murray G. Lewis interpleads, claiming one hundred and twenty dollars of the money confessed by the garnishee, alleging that sixty dollars (part of the one hundred staked by Tice) was furnished by him. Upon this second trial below, the jury, under the instructions of the court, found for the interpleader sixty dollars, and thereupon the court gave judgment in his favor for this sum, and for the plaintiff, on the answer of the garnishee, for the sum of forty dollars. After verdict, the plaintiff filed his motions in arrest of judgment, and for judgment non obstante upon the answer of the garnishee, for the whole sum of two hundred dollars, which motions were overruled.

N. & S. A. Holmes, for appellant.

1. The court had no jurisdiction of the interplea in this case. There is no provision for a proceeding by interplea, in the law concerning executions, except before the sheriff, where property in specie is levied upon. In a garnishment under an execution, the issue between the plaintiff in the execution and the garnishee is simply one of indebtedness on the part of the latter to the defendant in the execution; the garnishee must answer at his peril, and no third party can step in between the plaintiff in the execution and the garnishee's own confession. Rev. Stat. 1845, chap. 61, sec. 6.

2. The remedy provided by interplea, in the law concerning attachments, is of a definite and distinct nature, and is no part of a garnishment, as such, and cannot be extended by analogy to garnishments under an execution. Rev. Stat. 1845, chap. 11, sec. 39; 13 Mo. Rep. 579, Garrison v. McAllister & Co.

3. The whole proceedings upon the interplea were coram non judice, and, therefore, the court erred in not sustaining the motion in arrest of judgment.

4. The motion for judgment upon the answer of the garnishee ought to have been sustained. The garnishee in this case is a stakeholder, and the defendant in the execution the winning party; it appears from the answer of the garnishee that the losing party has never sought to avoid the wager, and that any right to recover the money from the stakeholder is barred by lapse of time; and the question simply is, whether the law will permit a stakeholder to set up the illegality of the transaction against an execution creditor of the winning party, and pocket the money. 1 Bos. & P. 3, Tenant v. Elliott.

5. The 11th section of the act concerning gaming does not alter the common law. The 12th section is a limitation of the rights of the losing party, as existing at common law. Rev. Stat. 1845, chap. 71, secs. 11 & 12; Hickerson v. Benson, 8 Mo. Rep. 11.

6. The garnishee in this case is not simply a depositary--he is a stakeholder,...