Wood v. Edgar

• Decision Date: 31 July 1850
• Citation: 13 Mo. 451
• Parties: WOOD v. EDGAR.
• Court: Missouri Supreme Court

13 Mo. 451

WOOD

v.EDGAR.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO COOPER CIRCUIT COURT.

The plaintiff in error, at the September term of the Circuit Court of Cooper county, obtained a judgment against James L. Collins and David Workman for the sum of $1,273 22, for his debt and damages and for costs, and to obtain satisfaction of his judgment he caused an execution to be issued upon it, and placed the same in the hands of the sheriff of Cooper county to be executed. The sheriff, finding no property of the defendants upon which to levy the same, at the instance of the plaintiff summoned the said James M. Edgar as garnishee, to answer interrogatories to be exhibited by plaintiff at the return term of the writ, as is provided in the 6th section of the act regulating proceedings by and upon execution. The plaintiff exhibited his interrogatories to the said Edgar, who, as garnishee, answered that at the time of his being summoned he had $1,000 of American gold (in his possession) of the said Collins, and still had the same, and that said Collins had placed it in his hands, with directions to him, said Edgar, to endeavor to compound with the creditors of the late firm of said Collins & Workman, and to use the same in compounding with said creditors upon the best terms he could procure; and thereupon he submitted to the court the matter, whether the money so in his hands was subject to the demand of the plaintiff or not. Upon this answer the plaintiff moved the court for judgment against said garnishee, and the court decided that the money was not liable to his demand, and thereupon rendered judgment for costs of the proceedings against the plaintiff. The plaintiff excepted to the opinion of the court, and moved the court for a new trial, which being overruled, the case was brought to this court by writ of error.

HAYDEN, for Plaintiff. 1. The statute authorizing the proceedings by garnishment is a remedial statute, and should be liberally construed by the courts to effect the object of its enactment; and in doing so, the courts will understand by it that the Legislature intended to afford the creditor the means of reaching such effects of the debtor as are or may be in the hands of strangers to the execution, and which are not tangible or to be found by the ordinary means resorted to by the officer holding the execution, in a faithful discharge of his duty. It was the intention of the Legislature to afford a creditor, upon his writ of execution, in his suit by garnishment (if the phrase be allowable), the same measure of justice as is afforded the creditor in a similar proceeding, upon his writ of attachment. The object, policy and reason of the two statutes being precisely the same, as is manifested as well in the form of the proceedings presented by the two acts under which the same may be had, as in the judgment provided for in each. See Digest, 1845, title Attachment, §§ 12, 13; same book, title Execution, p. 476, § 6. By the 12th section of the Attachment law it is enacted that garnishees may be summoned by the sheriff to appear at the return term of the writ of attachment “to answer the interrogotaries which may be exhibited by the plaintiff against him,” and such is the form-of the summons prescribed in favor of the execution creditor; and it is further expressly provided in behalf of the execution creditor, that “““the like proceedings shall be had, and the like judgment rendered for or against the garnishee,...