Lee v. Tabor

8 Mo. 322

• Court: Supreme Court of Missouri
• Decided: July 15, 1843
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the Court.

Tabor and Watson were summoned as garnishees in a suit commenced by attachment, against William J. Austin. In answer to interrogatories filed, Tabor and Watson, the garnishees, stated they had and have no property or effects of the defendant in their possession, and are not and were not indebted to them.

They also stated, that they were assignees under a deed of assignment made to them by Savage & Austin, (of which firm said Austin is the surviving partner,) for the benefit of their creditors, and admit that there are some effects in their hands, by virtue of said assignment.

They further state, that they are assignees under an assignment made to them by the defendant in the attachment, Austin, of his individual property and effects, for the benefits of his creditors.

To the answer of the garnishees, the plaintiffs filed replications, affirming that there were effects of the defendant, Austin, in the hands of the said garnishees, and that the said deed of assignment was fraudulent and void.

On the trial, the court discharged the garnishees, and the plaintiffs have sued out this writ of error.

It does not appear for what reason the court discharged the garnishees ; it was not, as was alleged, for the want of evidence, for the record states, that without hearing any evidence the order for the discharge was made.

From what fell, upon the argument of this cause, we are warranted in presuming that the garnishees were discharged on the authority of the case of Van Winkle vs. McKee, 7 Mo. Rep., 435.

That case arose on the construction of the statute giving plaintiffs, in execution, a right to garnishee the debtors of the defendant. The reasoning of the court in that case would certainly apply to this; and were th'e phraseology of the statute concerning attachments as circumscribed as that in relation to executions, we would feel no hesitation in pronouncing a like judgment. Although, in our opinion, the same principles are involved in the two cases, yet such is the breadth of the statute relative to attachments, that we feel ourselves restrained from an application of them to the case now under consideration.

Under the execution law, a garnishment is given against the debtors of the defendant in the execution. The statute concerning attachments, 1835, section 1, gives an original attachment against the lands, tenements, goods, moneys, effects, and credits of the debtor, in whosoever hands they may be. The seventh section directs, that all shall be summoned as garnishees who are named as such in the writ, and such others as the officer shall find in possession of money, goods, or effects of the defendant, not actually seized by the officer and debtors of the defendant, and also such as the plaintiff or his attorney shall direct.

The act of 13th February, 1839, gives an attachment against a debtor who has fraudulently conveyed or assigned any of his property or effects. There is an allegation, that the assignment in this cause mentioned is fraudulent and void. These provisions are sufficient to comprehend all persons whom the plaintiff will direct to be summoned as garnishees ; and if summoned, and it is found that they have money, goods, effects, or credits in their hands belonging to the defendant, the law makes them subject to the satisfaction of the judgment obtained in the suit commenced by attachment.

Judgment reversed.