Home Mutual Insurance v. Gamble

14 Mo. 407

Opinion

Birch, J.,

delivered the opinion of the court.

Gamble having an execution against one Paynter, garnisheed the Home Mutual Insurance Company. At the time of the garnishment, Paynter had an unsatisfied judgment against the company for a sum greater than he owed Gamble. Upon this judgment he had also taken out execution, but it appears by a section of the law applicable to that company, that .executions cannot issue against them for three months after judgment, and that that period had not intervened. The whole question, therefore, was and is, was Gamble entitled to the benefit of the open legal diligence disclosed in running his garnishee, or could it be defeated by the procurement and ■ recognition of an immature and illegal execution, which was discharged subsequent to the garnishment? The law would indeed be but too justly subject to the reproach of being a farce, could its principles and provision be thus evaded or trifled with, wherefore, the judgment of the court of common pleas, which very properly held the company liable for the amount of Gamble’s debt, when it could, so easily have had the pretended execution quashed, is in all things affirmed.