Weil v. Tyler

Wagner, Judge, delivered the opinion of the court. This case presents essentially the same state of facts that it did when it was here before. (38 Mo. 545.) We then held that the plaintiffs were not entitled to a money judgment against the defendants. On a re-trial there was no evidence of demand or refusal to pay in brandy, according to the contract of indebtedness, and the court instructed the jury that the plaintiffs could not recover. Yerdict and judgment accordingly went for defendants. An appeal was taken to general term, and the judgment was reversed, upon what ground, we áre not advised. There is no dispute about the defendants (garnishees) owing the amount in property — they admit that in their answer — but the issue was taken on an absolute and unconditional indebtedness, which they denied; and there was no proof that they owed anything, otherwise than as expressed in the contract, which was to be discharged by the payment of brandy. ,It is evident that they cannot be held liable in this proceeding. There are exceptional cases reported, but it must be considered as settled law that, to hold a garnishee liable in attachment, the debt must be such as is due in money. (Drake on Attach. § 550, 3d ed., and authorities cited.) This court has said, in speaking on the subject, that in order that an indebtedness may be liable to garnishment it must be shown to be absolutely due as a money demand, unaffected by liens or prior encumbrances or condition of contract. (Scales v. Southern Hotel Co., 37 Mo. 520; Weil v. Tyler, 38 Mo. 545.) [583] The plaintiffs, surely, have an appropriate remedy, but they have mistaken it upon going to trial upon this issue. The judgment will be reversed and the cause remanded. The other judges concur.