Shotwell ex rel. Markhan v. Wren

ELLISON, J. — In June, 1896, plaintiff obtained judgment in tbe circuit court of Linn county against tbe Marceline Opera House Co. and defendant Wren. One of tbe objects of the suit was to foreclose a mortgage on tbe opera bouse property. Tbe property was sold under tbe judgment leaving a balance of $2,300 due plaintiff. Tbe judgment was assigned to Harry Markham, who afterwards bad execution issued and directed to tbe sheriff of Jackson county. Tbe sheriff executed tbe writ by summoning Swofford Bros. Dry Goods Co. as garnishee. Tbe garnishee appeared and filed an answer to tbe interrogatories, stating that tbe company ’did Pot owe defendant and that it bad no money or property of defendants in its possession or control. This was denied by plaintiff and it was charged that tbe garnishees were aiding in covering property for defendant. A change of venue was then granted to tbe Macon Circuit Court. There was some difficulty in getting a complete transcript from tbe Linn Circuit Court, which caused one or more continuances in tbe Macon court. Among some other imperfections of transcript was that the execution upon which tbe garnishment was made was lost. This was finally supplied by copy and tbe parties thereupon went to trial. Tbe garnishee then made tbe point to tbe court that there was no sufficient service of garnishment só as to give tbe court jurisdiction over tbe subject-matter or res. This was sustained and plaintiff thereby defeated in bis garnishment proceedings. This controversy then arose by reason of the garnishee presenting a claim for expenses and attorneys’ fees. Tbe trial court allowed $614.09. No instructions were asked. The sole question presented by plaintiff is that it was tbe duty of garnishee’s attorneys to have discovered tbe objection as to tbe sufficiency of the garnishment and made it [154] known before such great expense had been incurred; and the latter part of the opinion in the cáse of Hansard v. Ins. Co., 62 Mo. App. 146, is cited to sustain the point. If we concede that a garnishee would not be permitted to stand by with knowledge of a fatal defect in the proceedings until great expense had been incurred on the merits and then have that expense allowed to him under the statute, yet we can not see how such rule can be applied to this garnishee. Here, the execution with return disclosed the defect and it was lost. It was finally restored by copy and when this was done the garnishee, in reasonable time, discovered and made known the point. So, therefore, there was no lying by with knowledge until large expenses had been incurred, and plaintiff’s point is not sustained on the facts disclosed. But conceding that the execution and return had not been lost and had been available all the time for examination by the garnishee’s attorneys, yet there is nothing in the record to show that they actually discovered and became aware of the point which they afterwards made, but held it back until the expense had been incurred. There is something said in the record that, though in fact they did not, they might have discovered it by using diligence. Primarily it was, at least, as much the duty of plaintiff’s attorneys to ascertain the point as to whether they had sufficient service to lay hold on the money or property charged to be in garnishee’s hands as it was the duty of the attorneys for the garnishee. The fact that it was undiscovered by the able and diligent counsel for plaintiff ought to go far towards excusing their brethren on the other side. We find ourselves without proper cause for disturbing the judgment and it is accordingly affirmed. Smith, P. J., concurs; Gill, J., absent.