Warner v. Miller

Missouri Court of Appeals

Warner v. Miller

88 Mo. App. 321, 1901 Mo. App. LEXIS 54

DecidedApril 1, 1901

StatusPublished

This text of 88 Mo. App. 321 (Warner v. Miller) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warner v. Miller, 88 Mo. App. 321, 1901 Mo. App. LEXIS 54 (Mo. Ct. App. 1901).

Pincite

Opinion

SMITH, P. J.

Plaintiff was given judgment against defendants I. N. Miller and wife. Execution was issued thereon and Robert S. Meyer, administrator of the estate of G. W. Haken, deceased, was summoned as garnishee. In answer to plaintiff’s interrogatories the garnishee admitted that he, in his capacity of administrator of the said decedent’s estate, was- in[323]*323debted to the defendant I. N. Miller for medical services, but alleged that said debt, as he was informed, had been assigned to U. G-. Crandall and allowed by the probate court in his favor prior to the service of the garnishment. There was a denial of the answer by plaintiff, with which was coupled an allegation to the effect that said assignment of said debt-' was made with the intent to hinder, delay and defraud, and that the assignee participated in such fraud. The answer prayed that the “assignee be summoned to interplead and show what claim, if any, he had to the property in' the hands of the garnishee,” etc. The order so prayed for was made accordingly. The summons was issued and served on the assignee who appeared and filed his interplea in which he pleaded that the said Miller debt had been assigned to him as collateral security and that it was insufficient to pay the demand for which it was assigned.

The plaintiff filed a denial of the allegations of the inter-plea. Afterwards, the court called the interplea branch of the case for trial and repeatedly inquired of the interpleader whether or not he was ready for trial, but he refused to make any announcement whatever, whereupon the court dismissed his interplea. Thereupon, the garnishment branch of the case was called and the trial thereon was proceeded with, resulting in judgment in favor of the plaintiff. The interpleader filed a motion for a new trial, which was by the court overruled. The garnishee took no exception to the judgment but acquiesced therein. The interpleader took an appeal from this judgment.

Hnder the Statute in relation to garnishment, any person claiming property, money or credits attached in the hands of a garnishee may interplead in the cause as provided in attachment cases, but no judgment shall be rendered against a garnishee in whose hands the same may be until the interplea shall be determined. R. S. 1889, sec. 5226. The interplea is in no sense a part of the cause of action; it is the assertion of an in[324]*324dependent right; it is a statutory replevin engrafted in the attachment act, and it must be tried and determined separately upon what is virtually an independent record. Wolff v. Vette, 17 Mo. App. 36; Giett v. McGannon, 74 Mo. App. 209; State ex rel. v. Kumpff, 62 Mo. App. 332; Car Co. v. Barnard, 139 Mo. 142. The interplea being a civil action, the interpleader therein takes the place of the plaintiff in the ordinary action and the plaintiff in the garnishment proceeding takes that of defendant. The interpleader had no interest in the garnishment branch of the case.

After the court gave judgment dismissing his interplea, which stood for the petition in that branch of the case, it was of no consequence to him what became of the garnishment proceeding. He had no interest in that. He was no party to it. Nor had he any right to complain of the judgment against the garnishee. He was a stranger to it. The garnishee alone could be injured by it and he alone could appeal from it. Certainly, the interpleader had no right to appeal from a judgment to which he was no party. He could have appealed from the judgment of the court dismissing his interplea had lie chosen to do so, but this he did not do. The record shows that he appealed from the judgment in the other branch of the case. ' He has no more right to have the proceedings of the court in the garnishment case reviewed on his appeal than he would in any other suit to which he was no party. It is well settled in this State that a judgment dismissing a suit is a final judgment from which an appeal will lie. Bowie v. Kansas City, 51 Mo. 454; O’Connor v. Koch, 56 Mo. 253.

It follows that since the interpleader did not appeal from the judgment dismissing his interplea, which was the only judgment from which he could appeal, the appeal taken by him from the judgment against the garnishee must be dismissed, which is ordered accordingly.

All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

SMITH, P. J.

Plaintiff was given judgment against defendants I. N. Miller and wife. Execution was issued thereon and Robert S. Meyer, administrator of the estate of G. W. Haken, deceased, was summoned as garnishee. In answer to plaintiff’s interrogatories the garnishee admitted that he, in his capacity of administrator of the said decedent’s estate, was- in[323]*323debted to the defendant I. N. Miller for medical services, but alleged that said debt, as he was informed, had been assigned to U. G-. Crandall and allowed by the probate court in his favor prior to the service of the garnishment. There was a denial of the answer by plaintiff, with which was coupled an allegation to the effect that said assignment of said debt-' was made with the intent to hinder, delay and defraud, and that the assignee participated in such fraud. The answer prayed that the “assignee be summoned to interplead and show what claim, if any, he had to the property in' the hands of the garnishee,” etc. The order so prayed for was made accordingly. The summons was issued and served on the assignee who appeared and filed his interplea in which he pleaded that the said Miller debt had been assigned to him as collateral security and that it was insufficient to pay the demand for which it was assigned.

The plaintiff filed a denial of the allegations of the inter-plea. Afterwards, the court called the interplea branch of the case for trial and repeatedly inquired of the interpleader whether or not he was ready for trial, but he refused to make any announcement whatever, whereupon the court dismissed his interplea. Thereupon, the garnishment branch of the case was called and the trial thereon was proceeded with, resulting in judgment in favor of the plaintiff. The interpleader filed a motion for a new trial, which was by the court overruled. The garnishee took no exception to the judgment but acquiesced therein. The interpleader took an appeal from this judgment.

Hnder the Statute in relation to garnishment, any person claiming property, money or credits attached in the hands of a garnishee may interplead in the cause as provided in attachment cases, but no judgment shall be rendered against a garnishee in whose hands the same may be until the interplea shall be determined. R. S. 1889, sec. 5226. The interplea is in no sense a part of the cause of action; it is the assertion of an in[324]*324dependent right; it is a statutory replevin engrafted in the attachment act, and it must be tried and determined separately upon what is virtually an independent record. Wolff v. Vette, 17 Mo. App. 36; Giett v. McGannon, 74 Mo. App. 209; State ex rel. v. Kumpff, 62 Mo. App. 332; Car Co. v. Barnard, 139 Mo. 142. The interplea being a civil action, the interpleader therein takes the place of the plaintiff in the ordinary action and the plaintiff in the garnishment proceeding takes that of defendant. The interpleader had no interest in the garnishment branch of the case.

After the court gave judgment dismissing his interplea, which stood for the petition in that branch of the case, it was of no consequence to him what became of the garnishment proceeding. He had no interest in that. He was no party to it. Nor had he any right to complain of the judgment against the garnishee. He was a stranger to it. The garnishee alone could be injured by it and he alone could appeal from it. Certainly, the interpleader had no right to appeal from a judgment to which he was no party. He could have appealed from the judgment of the court dismissing his interplea had lie chosen to do so, but this he did not do. The record shows that he appealed from the judgment in the other branch of the case. ' He has no more right to have the proceedings of the court in the garnishment case reviewed on his appeal than he would in any other suit to which he was no party. It is well settled in this State that a judgment dismissing a suit is a final judgment from which an appeal will lie. Bowie v. Kansas City, 51 Mo. 454; O’Connor v. Koch, 56 Mo. 253.

It follows that since the interpleader did not appeal from the judgment dismissing his interplea, which was the only judgment from which he could appeal, the appeal taken by him from the judgment against the garnishee must be dismissed, which is ordered accordingly.

All concur.

Cite This Page — Counsel Stack

Bluebook (online)

88 Mo. App. 321, 1901 Mo. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-miller-moctapp-1901.

Opinion

Related

Cite This Page — Counsel Stack