McDaniel v. Bryan

ELLISON, J. Plaintiff obtained a judgment against L. E. Bryan. In process thereunder the garnishee herein was summoned to answer interrogatories. He filed an answer stating that he did not owe Bryan and that he did not have any money or property in his ■ hands which belonged to him. Plaintiff thereupon filed a denial to the answer in which he alleged that the garuishee had money in his hands as the proceeds of the sale of real estate belonging to Bryan, but which had been conveyed to the latter’s wife in order to defraud creditors. The garnishee, taking the position that such allegation could not be inquired into in a garnishee proceeding, moved to strike out, substantially all of the denial. The trial court, adopted such view and sustained the motion, though it does not appear that the order therefor was entered of record. The plaintiff then filed an amended denial omitting matter of transfer from Bryan to his wife. On the trial the court held that the matter of fraudulent transfer to defendant’s wife could not he inquired into in a garnishment proceedings, and sustained a demurrer to the evidence. Plaintiff took a nonsuit. He afterwards, in due time, moved to set aside the non-suit and the court, on further consideration, having become convinced that the first rulings were erroneous, sustained the motion, stating at the time, tkát error was — 643 — committed against the plaintiff in striking ont his original denial of the answer (though the record proper omits to show the order), and in sustaining a demurrer to the evidence, and in excluding certain evidence. The court also set aside the order striking out .plaintiff’s original denial. Prom this order setting aside the non-suit, the garnishee has appealed. It is the law that a fraudulent transfer of the debt- or’s property with a purpose of defrauding creditors may be attacked in garnishment proceedings. [Holmes Organ Co. v. Pettitt, 34 Mo. App. 536, 1. c. 539; Epstein v. Clothing Co., 67 Mo. App. 221; Dunlap v. Mitchell, 80 Mo. App. 393; Hurley v. Taylor, 78 Mo. 238; Lander v. Ziehr, 150 Mo. 403; Hungerford v. Greengard, 95 Mo. App. 653.] It is therefore clear that the trial court’s conclusion in setting aside the nonsuit forced upon the plaintiff was correct. The garnishee makes several points against the court’s order in sustaining the motion to set aside the nonsuit. They are all of a technical nature. While a mere technicality will frequently compel a decision without reference to merits, we think it not so in this case. The trial court has large discretion in granting new trials. The court saw that in an adverse and erroneous ruling on plaintiff’s case an injustice has resulted and it had the authority to remedy the injustice by granting a new trial. We have gone carefully over each of garnishee’s points, but believe they are not well taken. The order is affirmed. All concur.