J. Abeles & Co. v. N. Friedberg & Co.

ELLTSON, J. The plaintiffs obtained judgment against defendants before a justice of the peace in Cole county and had a regular execution issued thereon. On this execution the constable garnished the respondent garnishee to appear before the justice and answer interroga [669] tories. The summons of the garnishee was dated and served December 2, 1896, and commanded the garnishee to appear before the justice December 5, to answer interrogatories. The garnishee appeared for the purpose only of a motion to quash the garnishee summons and the justice sustained the motion. On appeal to the circuit court on a new hearing the motion was again sustained. Plaintiffs appeal to this court. The statute, section 6310, Revised Statutes 1889, directs a summons to command the garnishee to appear at a time not less than five nor more than fifteen days from the service. It will be observed that this summons required the garnishee to appear in less than five days. It was therefore properly quashed. Williams v. Bowers, 26 Mo. 601; Sanders v. Rains, 10 Mo. 770; France v. Evans, 90 Mo. 74; Young v. Downey, 150 Mo. 317, 329. Plaintiffs asked leave to amend the summons by making the date of service November 18, instead of December 2. This was properly not allowed. If for no other reason than that as amended it would have required the attendance of the garnishee at a time more than fifteen days from the date of service, viz.: November 18, to December 5. Plaintiffs contend that the summons of a garnishee is not a judicial writ, citing Grocer Co. v. Carlson, 67 Mo. App. 179. It is at least a notice by written summons by the constable and if made returnable in less time than allowed by law is void under the rulings in the cases aforesaid, which we consider directly applicable to the point now in controversy. See, also, Swallow v. Duncan, 18 Mo. App. 622. The judgment of the trial court was undoubtedly right and will be affirmed. Smith, P. J., concurs; Gill, J., absent.