Fullerton v. Kelliher

48 Mo. 542

• Court: Supreme Court of Missouri
• Decided: October 15, 1871
• Status: Published

Opinion

Currier, Judge,

delivered the opinion of the court.

As a defense to the plaintiff’s suit the defendant shows by his answer that he paid the amount claimed, less his fees in a garnishment proceeding against the plaintiff, in which the .present defendant was summoned as garnishee. ■ Transcripts from the justice before whom the proceedings were had were given in evidence to prove the averments of the answer. These transcripts were objected to as evidence, upon the ground that they failed to prove, as the plaintiff insists, the rendition of a valid judgment either against the garnishee or against the principal defendant in the garnishment suit. The judgments as to their amounts were expressed in figures in combination with the dollar-mark, thus “ $121.00.” This is claimed not to be in compliance with the statute (Glen. Stat. 1865, 538, § 15) requiring judicial records to be written in the English language; and on that view the plaintiff bases his objections to the transcripts. The transcripts may be imperfect and objectionable in the particular named, but we are not disposed to hold that the defect was of a character to render the judgment absolutely void and of no avail in this collateral proceeding. ■ Besides, it was not necessary for the garnishee to delay payment until a valid judgment should be rendered. He was at liberty, in discharge of himself, to pay over the money in his hands to the constable ‘ ‘ at any time before final judgment against him.” (Wagn. Stat. 669, § 35.)

The judgment of the court below was- for the right party and will be affirmed.

The other judges concur.