Rucking v. McMahon

76 Mo. App. 372, 1898 Mo. App. LEXIS 197

• Court: Missouri Court of Appeals
• Decided: November 1, 1898
• Status: Published

Opinion

Bland, P. J.

Plaintiff commenced suit by attachment against Martin Heller in the St. Louis circuit court on an open account, aggregating $783.30. McMahon was summoned as garnishee. In his amended answer to interrogatories filed, he denied any indebtedness, etc., to Martin Heller at the date of the service of garnishment. Plaintiffs in denial of the garnishee’s answer set forth an indebtedness by him to Heller of $860.86, which was denied by the garnishee. The issues thus made were submitted to a jury, who returned a verdict, finding McMahon indebted to Heller at the date of the service of garnishment in the sum of $1,068.90. The court made an order on McMahon to pay this sum so found by the jury to the sheriff in twenty days. McMahon filed his motion for new trial, which was overruled by the court, whereupon he ap-. pealed.

Section 5235, Revised Statutes 1889, concerning .garnishment proceedings, provides that when an order of this kind is made, if the garnishee fails' to pay over the money, within the time fixed by the court, “then the court shall enter up judgment against the garnishee.” * * '* No such judgment was rendered in this case and the appeal is premature, and it is not from a final judgment and is therefore dismissed.

All concur.