Heffner v. Rice

BROADDUS, P. J. This is an action of garnishment by plaintiff against the garnishee, The Missouri Pacific Railway Company. The plaintiff filed the necessary interrogatories and the company filed answer admitting that at the time of service of garnishment, “it had in its possession belonging to and due W. A. Rice the sum of sixty-eight dollars and ten cents.” Plaintiff filed a motion for judgment on the pleadings which the court sustained and rendered judgment and the garnishee appealed. The ground relied on for a reversal is that the return of the officer did not show such service as gave the court jurisdiction. The return of the officer was made to conform practically to sub-division 4 of Revised Statutes 1899, section 338, which provides that: “Where goods and chattels, money or evidences of debt are to be attached the officer shall take the same and keep them in his custody if accessible; and if not accessible he shall declare to the person in possession thereof that he attaches the same in his hands, and summon such person as garnishee.” The appellant’s claim is, that as the property was a credit of defendant the return should have been made to conform to sub-division 5 of said section, which provides that, “the officer shall declare to the debtor of defendant that he attaches in his hands all debts due from him to the defendant or so much thereof as shall be sufficient to satisfy the debt and irlterest, etc.” We had this question before us in Hackett v. Gihl, 63 Mo. App. 447, wherein it was held that, “a return [670] which showed that the officer had garnisheed under one of these divisions would not answer for the other.” That if the property garnisheed was in the nature of property the return should conform to sub-division 4; if credits the return should conform to sub-division 5 of the statute, otherwise the court would not acquire jurisdiction of the subject matter. We so held again in Grocer Co. v. Carlson, 67 Mo. App. 179. The appellant assumes that the answer of the garnishee shows that it owed the defendant, which would make it a credit of $68.10, whereas the language is that defendant “had in its possession belonging to and due defendant $68.10,” that is to say, so much money. There was no explanatory evidence and we are to construe the language as it stands. Had the words “and due” been omitted there would be no room for dispute as to the real meaning. We do not think it means anything definite or that it qualifies in the least the expressive language that of “belonging to.” It may be considered at most, as a tautological expression. Plaintiff’s motion for leave to have the officer amend his return is overruled. The return being sufficient the judgment of the court was proper. Affirmed. All concur.