Darby v. Charless

13 Mo. 600

Opinion

RYLAbTD, J.

From the above statement, it will he seen, that the errors complained of, consist in the refusal of the court below, to give the instruction as asked for by the defendant below, and iu giving it after-wards with the addition thereto.made by the court. Also in overruling the motions for a new trial and in arrest of judgment.

The instruction prayed for is as follows : If the jury find from the evidence that the checks mentioned in the answer of Darby, garnishee, were in the possession of Norris Colburn, at the-time of his death, and were either drawn, payable to bearer, or indorsed in blank by the payees, or indorsed payable to bearer, then the said checks were -in law prima facie, the property of said Colburn.

The court refused to give this instruction as asked for, but gave it with the following words added : But said presumption can be rebutted by proof of property in said checks in other persons. This was all the instruction asked or given. ' The defendant below excepted to the opinion of the court in refusing to give his instruction in his own words.

We think the court below might just as well have given the instruction as prayed for by the defendant; and then afterwards given a second instruction embracing the proposition in the words which were added as above, as to have refused the instruction in the first instance, and afterwards give it with the addition as stated above.

The defendant, however, has no just cause to complain. His own instruction carries with it on its face, the meaning that it afterwards assumed in the shape which the court gave it — any mere prima facie case may be overturned by proof to the contrary — and the words added above to the instruction were only enabling the jury to understand plainly what every lawyer understood before.

What injury then has Darby suffered ? Were the jury misled by the words added by the court ? I presume not.(

a) Does the law suffer the administrator of a deceased partner, to hold as the property of the deceased, all the funds and money of the partnership on hand at the death of the partner, in exclusion of the rights of creditors of the living partner, or in exclusion of the living partner himself? The motion for a new trial was properly overruled, as the court committed no error in the instruction given, in the manner in which it was given.

There is nothing in the reasons assigned to support the motion in arrest; the issue was well enough made up ; the simliter might be added if necessary at any time ; all informality in denying the answer, and in making up the issue for the trial by jury, so that the .merits have been fairly placed before the jury, will be by this court disregarded. If we see that the merits have been fairly placed before the jury, and have been passed upon by them, that will suffice.

The question whether an administrator, as such, can be garnisheed for a debt due by his intestate, does not arise in this case. The money in Darby’s hands was foitnd to be the money of Smith, not of Colburn; Darby is not garnisheed as administrator of Colburn. He states how he came in possession of Smith’s money ; that is, the possession of money which the jury by their verdict say is Smith’s.

The allegations do not charge him, as having the money of Colburn in his hands, but the money of Smith ; if he has the money of Smith in his hands, he has it not as administrator, hut as John F. Darby. Smith’s money was paid to him as Colburn’s administrator. He can be garnisheed then by a creditor of Smith. Upon the whole record we find nothing calling on this court for its interference. The judgment below is affirmed.

(a) Jones v. Talbot, 4 Mo. R. 285, and note.