Garland v. Harrison

17 Mo. 282

• Court: Supreme Court of Missouri
• Decided: October 15, 1852
• Status: Published

Opinion

Hyland, Judge,

delivered the opinion of the court.

1. From the statement in this case, the ruling of the court, in admitting evidence, and in giving, as well as in refusing instructions, presents the main questions for the consideration of this court. It will be seen, that Garland had the assignment or transfer of the judgment of Clark v. Holliday, in Callaway Circuit Court, made to Crow alone. Pritcbartt drew this transfer at Garland’s request. Now if Garland bad furnished all the money to Crow to purchase the judgment with, and, when purchased, required it to be transferred to Crow, and Crow, in pursuance of this understanding, had bought the judgment, and had it thus assigned or transferred to himself, and had afterwards sold the same to Harrison, without his haying any knowledge of Garland’s interest in the original purchase, Harrison must hold the same against Garland. Garland, by his own act, put it into the power of Crow to show himself the purchaser and owner; he must then be bound by Crow’s acts in this matter. He gaye to Crow the authority to do the deed, and when done, Garland will not be permitted to set it aside against an innocent purchaser, without notice.

The judgment of Clark v. Holliday, in Callaway Circuit Court, being by attachment, and no personal service on Holli-day, and no appearance by him, is operative, so far as to reach the property only that had been attached. It was not evidence to support a new action, consequently Harrison and Crow consult an attorney, and the suit is brought, not on the judgment, but on the original cause of aetion, in Clark’s name, against Holliday. An attachment issues, persons are garnished, supposed to have Holliday’s money in their possession. This suit ripens into a judgment, and the money is made and by the attorney paid over to Harrison.

2. On the trial of this cause, the plaintiff, Garland, introduced Mr. Belt as a witness, and proves by Belt what Crow said to him about the transfer of this judgment from Clark ; that it was for the benefit of Garland and himself. To this testimony the defendant objected, and excepted to the opinion of the court in admitting it. Mr. Belt did not fix the time of this conversation with Crow; whether it was before or after the transfer by him to Harrison, does not appear. If it was after the transfer, then this conversation was clearly not admissible in evidence. Crow will not be permitted to affect Harrison’s interest and right, by anything he says after he has assigned or transferred to him.

It was error, then, to admit this testimony. From all that appears in this case, the court below might well have given the instructions prayed for by defendant at the close of the plaintiff’s evidence, for it really seems to us to be a suit between these parties for what appears to belong to another person. We shall not notice the instructions refused, as the case will have to be reversed for admitting improper evidence. From the inspection of the original paper “ A.,” attached to the record in this case, we have no hesitation in saying the date is August 2d, 1845, and in trying it again this may be borne in mind.

The judgment below is reversed and the cause remanded, to be further proceeded with in accordance with this opinion ;

the .other judges concurring.