Firebaugh v. Stone

Wagner, Judge, delivered the opinion of the court. Plaintiff sited Dyer & Roberts on by attachment, and summoned Stone as garnishee. Stone answered stating that he had in his possession and under his control certain money, goods, effects, &c., of the defendants, by virtue of an assignment made and executed by them to him. This assignment in another case came before this court, and it was decided to bo invalid. After said decision Stone filed his amended answer, stating that at the time of the service of the garnishment, he had in his possession twenty-seven hundred dollars in United States legal tender treasury notes, and about twenty-five hundred dollars in notes and accounts, most of which were worthless, and denied that he owed defendants anything. He further stated that defendants, at the time of the service of the garnishment, owed him and still do owe him two notes, and for services rendered at their special instance and request, in about the sum of nine hundred dollars; and that he has been served with garnishment in favor of other parties prior to his being garnished by plaintiffs, and that, after deducting the amount which defendants owed him and what he was liable to pay to the older attaching creditors, he was ready and willing to pay whatever balance there might be. Plaintiff demurred to this answer for insufficiency, alleging that the facts therein stated constituted no legal grounds of defence, and that Stone was not entitled to retain his debt in preference to the attaching creditors. The court overruled the demurrer, and gave judgment for Stone, the garnishee, and this is now complained of as error. In this case we arc unable to perceive that any other relation than that of debtor and creditor existed between the defendants in the attachment suit and Stone. In a direct proceeding- by them against him, to recover the property in his possession, or for money had and received, there is no doubt about his having a right to plead his debt as a set-off. The invalidity of the assignment is totally immaterial ; it [115] left him iii possession of goods, money, &c., which they might have demanded, or brought an action against him to recover. The rights of a garnishee will never be disturbed by the garnishment. Whatever claim he may have against a defendant, and of which he might avail himself by set-off in an action between them, will be equally efficient when invoked by him on a proceeding by garnishment. (Ashby v. Watson, 9 Mo. 286; Beach v. Viles, 2 Pet. 675.) It is held in an elementary work of merit, that an “ attaching creditor can hold the garnishee only to the extent of the defendant’s claim against the garnishee, and he can acquire no rights against the latter, except such as the defendant had ; and as he is not permitted to place the garnishee in any worse condition than he would occupy if sued by defendant, it follows necessarily, that whatever defence the garnishee could urge against an action by the defendant, for the debt in respect of which he is garnished, he may set up in bar of á judgment against him as garnishee.” (Drake on Attach., § 672.) The assignment having been held void and of no effect, there is no pretence that Stone occupied the position of either a trustee for the creditors, or a bailee to the debtors. The judgment is affirmed. The other judges concur.