Reese v. Cook

Opinion by Ellison, J. This action arose in the following way: One Roberts who was a contractor on the Quincy, Missouri & Pacific Ry. Co., which was being constructed through Grundy county, was largely indebted to various parties, and at the same time, there was due him from plaintiff [516] Reese, $1,331.53 Gilmore and Cook each sned Roberts by attachment, and each garnished Reese ; Gilmore being one day ahead of Cook with his attachment and garnishment. Reese paid what he owed Roberts to the clerk, and brought his bill of injunction against Gilmore and Cook, asking that they be perpetually enjoined from prosecuting their proceedings against him. The injunction was granted, though the case was retained on the docket, and Gilmore and Cook were to interplead for the money due from Reese to Roberts, which had been paid to the clerk as stated. This contest is between the interpleaders, Gilmore and Cook. The court found for Gilmore, and Cook appeals. On trial the following was admitted to be true : “That on the 25th of June, 1881, defendant Gilmore commenced suit by attachment in the circuit court of Grundy county, Missouri, against defendant Roberts, and on said day caused plaintiff to be garnisheed, to answer at the August term, 1881, of said court. That at said term of said court, on the fifth day of said term, and the fifth day of said month, defendant recovered judgment against said defendant Roberts for $666.50; that on the 26th of June, 1881, defendant Cook sued said Roberts by attachment in said circuit court, and on said day caused plaintiff to be garnisheed to answer at the August term, 1881, of said court; that at said term of said court, on the 5th day of the term, and 5th day of the month, defendant Cook recovered judgment against defendant Roberts for $714.25; that on the 12th of July, 1881, plaintiff Reese filed his petition in said court, against defendants Cook, Gilmore and others, alleging that he had been summoned as garnishee of said Roberts by Gilmore, Cook and others, largely in excess of his indebtedness to said Roberts; that he owed Roberts $1331.53, which he then paid to the clerk of said court, and asked that the court would adjudicate the rights of the claimants to said money, and enjoin the defendants from further prosecuting their said proceeding against him, and that he be discharged, which prayer said court [517] granted at the August term of said court, 1881, and on the 3rd day of th e term ; and at the same time said court further ordered that said cause be continued on the docket, and that defendants Gilmore and Cook present their claims to said money by interpleas, which they did. - It .was further admitted by said Gilmore and Cook that there is now in the hands of said clerk of said court $1,107.67 of said moneys paid by plaintiffs.” Though the matter here is voluminous, we have examined the cause in all its details and find its solution can be had by application of a familiar rule governing appellate courts in actions tried as this has' been. The trial was before Hon. J. H. Shanklin, as Special Judge, without the intervention of a jury, without instructions and without an objection to any portion of the testimony. Quite a great deal of testimony was introduced, tending to show that Gilmore and Roberts were partners in the work in which all'the indebtedness of Roberts arose ; all of which was denied by Gilmore. The cause was submitted to- the court on all the testimony, including the admission above set out as.to the attachment suits, the garnishments under them and the judgments following,without an objection to testimony and without an instruction. The court has made its finding and rendered its judgment. It is not for us to say, under the state of this case, what controlled the court in its conclusion.— Parkison v. Caplinger, 65 Mo. 294-5. It is enough that we see sufficient in the record by which that finding and judgment may be sustained. Appellant urges that he has proven Gilmore and Roberts were partners and the attachment proceedings had by them were collusive. There is evidence, however, on the part of Gilmore, that he was no partner of Roberts, and that the debt was bona fide. Assuming that if appellant’s allegations were true, he should have prevailed in judgment; how are we to know but that the court found them to be untrue ? The court was not bound to make a statement of its findings, much less, to state what was the controlling question influencing the judgment. — Erwin v. Brady, 48 Mo. [518] 560; Judge v. Booge, 47 Mo. 544; Kurlbaum v. Roepe, 27 Mo. 161. Appellant’s authorities, holding it to be necessary to make a finding on each count separately, are familiar, and it is true this should be done, unless each coimt is for the same cause of action, though differently stated, as is often done, so as to meet the proof. But here there is only one cause of action stated in the pleading, and but one put in issue by the testimony. The judgment is, with the concurrence of the other judges, affirmed.