State ex rel. Stevenson v. Hughes

BROADDTJS, P. J. This is a proceeding by mandamus instituted in the circuit court to compel the defendant, a justice of the peace, to grant a change of venue. The case was tried on an agreed statement of the facts as follows: [134] cember, 1905, there was rendered a judgment in said justice court in which E. 0. White was plaintiff and W. Mack Pope was defendant for $79.93; that there was issued by the justice on said judgment an execution and delivered into the hands of John J. Jeck-els, constable of Cedar township; that said constable on said execution summoned the relators, M. M. Stevenson and the Stevenson Packing Company, garnishees, and. attached in their hands all moneys, goods, and effects belonging to the defendant, W. Mack Pope, which garnishment was served on the 3rd day of January; 1908, and that the relators were summoned and notified to ansAver interrogatories on said garnishment proceedings before said justice of the peace on the 15th day of January, 1908; that thereafter, on the 14th day of January, 1908, the relators filed a written application for a change of venue, which it is admitted the attached application was duly served and other-Avise in regular and due form of law; that the respondent, the justice of the peace, refused and declined to grant said change of venue upon the ground it Avas prematurely filed and that the justice of the peace had no power to grant a change of venue until after the relators had answered the interrogatories of the plaintiff, E. C. White, in said execution and a denial filed of said ansAver by said E. G. White, the plaintiff in the suit above mentioned. It is further admitted that there was no denial filed to the answer of the garnishee and that the garnishee filed no reply to said denial.” On the hearing, the court awarded a peremptory writ and the justice appealed. [133] “It is agreed that the respondent, John B. Hughes, is a justice of the peace within and for Cedar township, Pettis county, Missouri; that on the 12th day of De- [134] The relators claim that the appeal should be dismissed for the failure of respondent to tender assignment of errors. As the statute requiring such assignments has been repealed, Rule Seventeen of this court is no longer in force. The appeal raises the question whether a change of venue in justice’s courts in garnishment proceedings [135] is allowable either before or after the filing of answer to the interrogatories. We think not. “Garnishment is one of the modes pointed ont by the statute by which the writ is executed and is not a new suit, but an incident or an auxiliary of the judgment and. a means of obtaining satisfaction of the same by reaching the defendant’s credits. The garnishee must make his answer in the court where the execution issues, as it alone has exclusive control over its process.” [Tinsley v. Savage et al., 50 Mo. 141.] “The garnishee must make his answer in the court whence the execution issues, it alone has exclusive control over its process.” [Chicago Herald Co. v. Bryan, 195 Mo. l. c. 596.] These authorities are conclusive of the question. We have examined relators’ authorities, but find that they do not militate against those referred to; and, if they did, they would be in conflict with the late decision of the Supreme Court, supra. For the reason given, the cause is reversed. All concur.