Scales v. Southern Hotel Co.

37 Mo. 520

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

Opinion

Holmes, Judge,

delivered the opinion of the court.

This is an appeal from the judgment of the St. Louis Circuit Court, rendered against the defendant, as garnishee under execution issued upon a judgment in favor of the plaintiffs against McBride & Thornburg. The issues were found for the plaintiffs, and judgment was given against the defendant for the sum of 1,072.18, the amonnt of the execution, with interest and costs thereon. There was no instruction, but a motion for a new trial was overruled, and exception was taken to the admission of the testimony of McBride, one of the defendants in the execution, offered as a witness for the plaintiff.

The questions presented for decision here would seem to be these only: First, whether McBride was a competent witness, and second, whether the finding and judgment were sustained by the evidence.

We think the defendant in the execution was a competent witness. Proceedings in garnishment constitute a separate record. There is a distinct trial, and the issues are to be tried and the parties adjudged to pay or recover, as in ordinary cases between plaintiffs and defendants. In garnishment on execution, the. proceedings are to be the same as under attachment. The defendant in the execution is not a party to the immediate record. His interest in the event of the trial does not exclude him. Neither can he be considered an assignor within the meaning of the statute, which excludes an assignor from being a witness. We see no good reason for excluding his testimony.

The finding of the court appears to have been well warranted by the evidence. With respect to the draft of Josiah Thornburg, the evidence does not show that it had ever been allowed as a payment on the account of McBride & Thornburg. It could not be taken into that account without the assent of McBride, which does not appear to have been given in a way to conclude him. He stated positively that he never did consent.

With regard to the amounts paid out to sub-contractors after service of garnishment, it did not clearly appear that at the times of payment they were demands which could have become liens under the statute. No notices of lien had been given. We must hold the finding of the court to have been correct until the contrary is made to appear. In order that an indebtedness may be liable to garnishment, it must be shown to be absolutely due as a money demand, unaffected by liens, or prior encumbrances, or conditions of contract; but the evidence here failed to show any such contract for the payment of this money to the sub-contractors or others as would prevent it from being subject to garnishment as money due the defendant in the execution.

J udgment affirmed.

J udge Wagner concurs; J udge Love-' lace absent.