McCause v. McClure

38 Mo. 410

• Court: Supreme Court of Missouri
• Decided: July 15, 1866
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The respondent was summoned as garnishee in a proceeding by attachment before a justice of the peace. In his answer to the usual interrogatories, he denied that he had in his possession or under his control any money, property or effects of the defendant, or that he owed him anything at the time of the service of the garnishment, or at any time thereafter. He further stated that defendant held a note on A. C. & G. R., Barrett for the sum of about one thousand dollars, which was negotiable, and that about one year after the note was given he signed the same without any consideration. There was no denial to the answer, nor evidence introduced, and the justice of the peace gave judgment in favor of the plaintiffs and against the garnishee. An appeal was taken to the Circuit Court, and on a trial there the answer was the only evidence in the cause, and the court reversed the judgment of the justice, and found for the garnishee, the respondent here.

By the statute in reference to proceedings by attachment before justices of the peace, when the answer of the garnishee is filed the. plaintiff may deny the answer, or any part thereof, on the same day on which it is made, if it be a regular law day; and if not, in such time as the justice shall direct. And if the answér of the garnishee is not denied in proper time, it shall be taken as true and sufficient — R. C. 1865, pp. 269-70, §§ 30-35. If the answer of the garnishee shows that he possessed property or effects of the attachment debtor, or owed him anything, it is the duty of the justice to ascertain the amount, and render judgment, whether there be a denial or not — id. § 36.

In this case the garnishee states that he owed the defendant in the attachment suit nothing; that he signed a note which defendant held* but that his signature was obtained without consideration. This was such an answer as required a denial and proof on the part of the plaintiffs; and they having failed,to deny its truth, it must be taken to be true and sufficient. In cases of garnishment it is an admitted principle, that where the garnishee does not avow an indebtedness, the attaching creditor must, by his denial, raise a triable issue ; here no issue was raised or attempted. We therefore think the instructions asked for by the plaintiffs were properly refused, and the judgment must be affirmed.

Judge Holmes concurs; Judge Lovelace absent.