Yawitz v. United Railway Company of St. Louis
| Decision Date | 31 December 1913 |
| Parties | HARRY L. YAWITZ, Appellant, v. UNITED RAILWAY COMPANY OF ST. LOUIS, Garnishee, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted December 4, 1913.
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Adolph Abbey for appellant.
(1) The issues raised by a denial of garnishee's answer and the reply, if filed, are the sole issues to be tried. Dodge v. Knapp, 112 Mo.App. 513; Holker v. Hennessey, 141 Mo. 527; Bank v. Dillon, 75 Mo. 380; Swartz v. Riner, 66 Mo.App. 476; Brown v. Gummersell, 30 Mo.App. 341. (2) One may be designated in legal proceedings by the name by which he is known, although not his true name. Nolan v. Taylor, 131 Mo. 224; Linton v. First National Bank, 10 F. 894; Washington v. State, 68 Ala. 85; Wilson v State, 69 Ga. 97; Rich v. Mayer, 7 N.Y.S. 69. (3) Garnishee, on garnishment execution, is entitled to an allowance for answering only when he is possessed of property or effects of the principal defendant, and when his answer is not denied or excepted to and is true. Sections 2434, 2435 R. S. 1909.
Boyle & Priest and R. E. Moloney for respondent.
(1) The respondent was unaffected by the summons of garnishment against it when the name of the defendant was different from that of the person to whom it was indebted, unless it was shown to have had actual knowledge of the fact that its debtor and the person so named were the same. German Natl. Bank of Denver v. Natl. State Bank of Boulder, 5 Colo.App. 427; German Natl. Bank of Denver v. Natl. State Bank of Boulder, 31 P. 122; Terry v. Sisson, 125 Mass. 560; Gittings v. Russell, 114 A.D. 405; White v. Springfield Sav. Institution, 134 Mass. 232; Dutton v. Simmons, 65 Maine, 583; Bowen v. Mulford, 10 N.J.L. 230; Hutchinson's Appeal, 92 Pa. 186. (2) The garnishee on garnishment execution is entitled to an allowance of fifteen dollars for answering irrespective of whether or not it has possession of property or effects of the principal defendant. Sec. 2436, R. S. 1909; Ellison v. Ralston, 19 Mo.App. 537; Shotwell v. Markham, 85 Mo.App. 151. (3) Since this cause was tried by the court without a jury, and the appellant asked for no declarations of law or fact, and no declarations of law or fact were given, the appellate court has nothing to determine. Under the circumstances it is immaterial whether the trial court decided on the law or the facts, and the judgment should be affirmed. Rice v. McClure, 74 Mo.App. 383; Jordan v. Davis, 172 Mo. 599; Harrison v. Bartlett, 51 Mo. 170; Hlil v. Kingsland, 131 Mo. 48.
The appellant brought his action before a justice of the peace against Bert Braxton and Bert C. Braxton. Summons was issued and returned as served. At the return day of the summons, the defendants not appearing, the justice rendered a judgment against them in the sum of $ 25 and costs of suit. Afterwards a transcript of this judgment was filed in the office of the clerk of the circuit court. Execution issued out of that court and under it the respondent here, United Railways Company, was duly summoned as garnishee. The statutory interrogatories were filed requiring the defendant railway company to answer whether at the time of the service of the garnishment, it had in its possession or under its control, any property, etc., of, or owed "either of the defendants" any money; whether it owed them any now, and if so, how much. The garnishee answered, denying that at the time of the service of the garnishment it had in its possession any property, etc., of, or that it then owed or now owes the defendants Bert Braxton or Bert C. Braxton any sum of money whatever, but further sets out that "C. M. Braxton has been employed by it, but that he has never been known as, nor is he the person or either one of them known as Bert Braxton or Bert C. Braxton." The answer further states, upon information and belief, that the plaintiff in the case had never procured any judgment against C. M. Braxton nor has any writ or other process ever been served on him and that to the best information and belief of the garnishee, C. M. Braxton has never been known by any other name. This was replied to, the reply averring that C. M. Braxton was in the employ of defendant; that defendant owed him; that he was the Bert. C. Braxton referred to and that the garnishee knew that.
The cause was tried to the court, a jury being waived, and without the introducing of any evidence but agreed statements of facts, which are in writing and as follows:
To continue reading
Request your trial