Dickey v. Fox

24 Mo. 217

• Court: Supreme Court of Missouri
• Decided: January 15, 1857
• Status: Published

Opinion

LEONARD, Judge,

delivered the opinion of the court.

The principles settled and acted upon in Gates against Kirby, (13 Mo. 158,) and in Howe against Funkhouser, decided at the St. Louis spring term, 1856, (the opinion in which was filed at the succeeding fall term,) are applicable here, and must control the decision in this case.

We are told that the bond was payable “ without discount or defalcation,” and. assigned to the plaintiff before the maker was garnished, and that therefore neither a voluntary payment nor a compulsory payment in a proceeding to which the plaintiff was a stranger could have the effect of divesting him of his debt. If this be so, and we think it is, then, according to Gates v. Kirby, the plaintiff still retains his original right of action against his own debtor. And, according to the case of Howe v. Funkhouser, the mere fact (no fraud or collusion being here suggested) that the present defendant obtained a recovery against the maker of the note as the supposed debtor of the original payee, gives the assignee no right to follow the money thus recovered and wrest it from the attaching creditor upon the ground that it was obtained under the supposition that the attached debt was, at the time of the garnishment, still owing to the original payee. The judgment is affirmed.