Schawacker v. Luddington

83 Mo. App. 342, 1900 Mo. App. LEXIS 178

• Court: Missouri Court of Appeals
• Decided: February 27, 1900
• Status: Published

Opinion

BLAND, P. J.

On June 1, 1896, D. J. Dempsey entered into a contract with Francis H. Luddington to do all the work and furnish all the materials in the reconstruction of building No. 20 North Main street, for $850.

And on June 15, 1896, said D. J. Dempsey entered into another contract to do all the work and furnish all the materials required, in the reconstruction of building known as No. 6 North Commercial street for $2,500.

On the first day of July, 1896, when the said work was incomplete and the most of the work thereof remained yet to be done, D. J. Dempsey, in consideration of John Dempsey assuming the completion of the said contracts, and for other. considerations especially agreed between said D. J. Dempsey and John Dempsey, said D. J. Dempsey assigned and set over to said John Dempsey all moneys then owing or to become owing by said Luddington for said work and materials to be done and furnished to said contracts.

Said assignment was delivered to Luddington on the first day of July, 1896, and he accepted the same. And from that on recognized said John Dempsey alone as the party authorized to do and perform said work, or to control the same.

The other considerations mentioned in the assignment were evidenced by an agreement of the same date therewith, and executed on that day, by said D. J. Dempsey and John Dempsey, and it appeared thereby that D. J. Dempsey had given his promissory note for $550 in favor of Mrs. M. Boll-man; that he had given his two notes in favor of Buxton <te Skinner Printing Co. for over $300, and that he was indebted to S. J. Fisher & Co., $372, and that John Dempsey assumed the payment of all these notes and debts aforesaid, and assumed all trouble and liability and expenses .in completion of the contracts aforesaid. And agreed to pay for all labor and materials required to complete said contracts.

Under the said contracts and the assignment thereof aforesaid, the work was completed on the twentieth day of July, 1896, and after paying all materialmen and labor, except for any work that D. J. Dempsey and John Dempsey themselves had performed, there was a balance in the hands of said Luddington of $1,516.47.

On the said twentieth day of July the said Luddington was garnished under an execution in favor of Christ Schawacker against Dennis J. Dempsey and William Dempsey, and on October 16, 1896, the said Luddington filed his answer herein, and on the same day the plaintiff filed his reply to said answer. On October 21, the following order was made in said cause:

“On motion of the garnishee herein by attorney, it is ordered by the court, that John Dempsey show cause, if any he have, on Wednesday, November 4, 1896, before Thomas A. Russell, Judge of Division No. 7 of this court at ten o’clock in the forenoon, why he should not interplead herein.”

And on November 4, said John Dempsey filed his inter-plea herein, in which he stated that the said money so alleged to be garnished in the hands of said Luddington is not and was not the property of said D. J. Dempsey.

That prior to the service of the garnishment on said Luddington said D. J. Dempsey assigned all his right and interest in said money or indebtedness to said John Dempsey, interpleader.

On November 9, 1896, the plaintiff, in answer to the interplea of said John Dempsey, denied each and every aliegation therein contained, and further answered as follows:

“And for further answer to said interplea of said John Dempsey, plaintiff states that said John Dempsey, at the time of the service of the garnishment in this cause, had no interest or right in the moneys due and owing by said Erancis IT. Luddington to the said Dennis J. Dempsey under the reconstruction contracts mentioned in the answer of said garnishee," and that the assignment made by the said Dennis J. Dempsey to said John Dempsey, set forth in the said inter-plea, was made to hinder, delay and defraud this plaintiff, and that said Dennis J. Dempsey made, executed and delivered said assignment for the purpose of hindering, delaying and defrauding this plaintiff, and that the said John Dempsey, who is a brother of said Dennis J. Dempsey, knew the purpose and intent of the said Dennis J. Dempsey in executing the said instrument was to hinder, delay and defraud plaintiff herein, and further knew that the said Dennis J. Dempsey was insolvent, and being so insolvent, made, executed and delivered the said instrument in writing for the purpose of hindering, delaying and defrauding plaintiff herein.

“Plaintiff further states that the said John Dempsey was employed by the said Dennis J. Dempsey, and continued in his said employ, and had no interest in any matter or thing connected with the said contracts, but was simply used by the said Dennis J. Dempsey as the pretended assignee of the said contracts; nor was there any sum of money paid to the said John Dempsey for the execution of the said assignment, nor did the said John Dempsey pay out any sum for any material or labor furnished in the construction of the said buildings, but that the amount due and owing by the said Erancis Luddington is the profit arising under the said contracts to the said Dennis'J. Dempsey.

“Plaintiff states that by reason of the insolvency of the said Dennis J. Dempsey, and by reason of the fraud in the execution, of the said assignment, that the said John Dempsey is not entitled to any sum of money in the hands of the said garnishee.

“Wherefore plaintiff prays judgment for the money confessed in the hands of said garnishee, and for such other and further relief in the premises as to the court may seem meet and proper.”

There was evidence that after the assignment to John Dempsey, he took charge of the work and completed it. There was also evidence that after the assignment John Dempsey was seldom seen about the buildings, and that the work went on as before under the supervision of Dennis J. Dempsey, and that he, under a power of attorney from John Dempsey, receipted for payments on the contracts by Luddington. Neither Mrs. M. Bollman, the Buxton & Skinner Printing Company, nor S. J. Fisher & Company, were ever informed that John Dempsey had assumed and agreed to pay Dennis J. Dempsey’s indebtedness to them, nor did either of them ever agree to look to John Dempsey for payment. It was also in evidence that one McLaughlin had paid the Buxton & Skinner Printing Company’s claim, and about $325 of Mrs. Bollman’s note, for both of which debts he was surety to Dennis J. Dempsey. John Dempsey paid nothing to Dennis J. Dempsey for the contracts, and had not to the day of trial paid a dollar on any of the debts he assumed to pay. On his cross-examination, the following questions and answers appear in the bill of exceptions:

“Q. If you don’t know what your brother’s intentions were, as you now state you did not, why did you say on direct examination, in answer to questions, that he did intend to protect the creditors mentioned in said agreement? A. As far as I know that was his reason. Q. What was.it to protect these creditors from? A. As far as I know, a judgment. Q. What judgment? A. I would suppose Mr. Schawacker’s judgment. Q. These creditors you mentioned in your direct examination had no judgment against your brother, had they? A. Not that I am aware of. They may have, but I don’t know. Q. Then how would they be protected by this assignment? A. That I don’t know; I suppose that would be for the court to decide. Q. The first object of the assignment was to prevent Schawacker from getting hold of the Luddington money, was it not ? "A. I suppose that was the object. Q. In this transaction, then, you had no financial interest whatever, paying nothing therefor, nor on the contracts assigned to you, except by orders as you have above testified, but took the assignment as you have státed for the benefit of your brother, Dennis, and at his suggestion ? A. Yes, sir. Q. I understand by your answer to the last question, ‘Yes, sir,’ that you had no financial interest in the transaction? A. Yes, sir.”

The verdict and judgment were for plaintiff, from which J ohm Dempsey, the interpleader, duly appealed.

I. Appellant contends that the circuit court was without jurisdiction to try the interplea, for the reason he asserts, that an interplea will not lie to reach funds in the hands of a garnishee on execution. Section 3441, Revised Statutes of 1899 of the Garnishment Act, enacts that “any person claiming property, money, effects or credits attached in the hands of a garnishee, may interplead in the cause, as provided by law in attachnlent cases * * The right to inter-plead in attachment cases was first enacted by the Missouri Territorial Legislature in 1818, and has been continued without material change in every revision of the general statutes made since the admission of the state into the Federal Union. But no statute can be found anywhere in the legislation of the state giving the right generally to interplead in-garnishment proceedings on an execution issued from a circuit court. In Wimer v. Pritchartt, 16 Mo. 252, Judge Gamble speaking for the court, uses the following language: “The statute, authorizing the sheriff to summon a debtor of the defendant as a garnishee upon an execution, makes no provision for any third party interpleading to claim the assets in the hands of the garnishee, and for a very good reason. The garnishee is summoned, as himself a debtor to the defendant, and it is a matter of sufficient interest to him, to see that he is not required to pay the debt of the defendant if he is not a debtor to the defendant. If he is in doubt as to the person ■who is his creditor, he has the means of bringing in all persons having an interest in the question, and having it determined so as to relieve himself from doubt or responsibility. The judgment then rendered in this case, in favor of the .interpleader Lewis, was erroneous, and is reversed.” In Straus v. Rothan, 41 Mo. App. loc. cit. 610, Judge Thompson, writing the opinion, says, that “under section 2525, Revised Statutes 1879 (identical with section 3441, supra), third persons may interplead as to property attached in the hands of the garnishee, while, in the case of property thus taken in execution, there is no such right.” Wimer v. Pritchartt, supra, is approvingly referred to in Wolff v. Vette, 17 Mo. App. loc. cit. 37. But the answer of the garnishee in this case comes under the express provisions of section 3459 Revised Statutes 1899, which provides that, an interplea may be filed and provides for the very proceedings that were had in this cause.

II. The answer of plaintiff to the interplea alleged that the assignment was made for the purpose of hindering and delaying the plaintiff in the collection of his judgments. The instructions given told the jury that if the assignment was made to hinder or delay creditors, etc. Appellants contend that the instruction is broader than the pleadings, and for this reason erroneous. The issues in a cause are raised by the pleadings. In this cause they were raised by the interplea and the answer thereto. Instructions should be confined to the pleadings, and are erroneous if they submit issues not raised by the pleadings, or expand the -issues so made to cover allegations not embraced or fairly intended to be embraced in the pleadings. Christian v. Insurance Company, 143 Mo. 469; Bank v. Armstrong, 62 Mo. 59. The instructions are obnoxious to the criticisms made by appellants, but the error is not a prejudicial one, since the evidence, if it proves fraud at all, proves that the plaintiff was the only creditor intended to be defrauded.

III. The evidence did not tend to prove that McLaughlin had paid all or so much of plaintiff’s judgment as to reduce it below the amount paid in by the garnishee, and there was no error in refusing defendant’s instruction telling the jury that if they found that McLaughlin had paid the judgment, they should find for the interpleader.

IV. One of the grounds set out in the motion for new trial was surprise by a part of the testimony of plaintiff, and newly discovered testimony, which impeached that part of plaintiff’s testimony by which appellant was taken by surprise. The interpleader’s deposition was taken in Kansas. Plaintiff was present when the deposition was taken, and he testified in substancé that he had a private conversation with the interpleader on the occasion, in which conversation the interpleader admitted to him (witness), that the assignment was made to him, for the purpose of preventing plaintiff from getting anything out of the building contracts. Affidavits of all the persons present at the taking of the deposition were filed in support of the motion. By these affidavits it appears that no such conversation took place at the time and place testified to by plaintiff, and that no private conversation whatever was had on that occasion between plaintiff and John Dempsey. That the granting of a new trial on account of newly discovered testimony, and for surprise on account of the testimony of a witness, or for any other reason, is largely within the discretion of the trial judge, and appellate courts will not interfere with the exercise of this discretion, unless there has been abuse of it; is well-settled law in this state. Schawacker, as to the admissions, he testified were made to him by John Dempsey, impeached himself. No jury who heard his cross-examination on this part of his testimony in chief could give it any credence; to further impeach this testimony would be but cumulative evidence. But John Dempsey in his deposition on cross-examination practicably admitted, under oath all that Schawacker testified that he admitted to him in private conversation, and the evidence as a whole leaves but little room to doubt that the assignment was made without consideration, and for the express purpose of defeating plaintiff in the collection of his judgment, and that John Dempsey had full knowledge of its purpose and entered into the agreement with his brother for the purpose of perpetrating the fraud on plaintiff. No good purpose, therefore, could have been served by granting a new trial, since a retrial in all probability would have resulted as this did. Dnder all the evidence the judgment is for the right party, and will be affirmed. It is so ordered.

All concur.