Holker v. Hennessey

Bbace, P. J. The respondent Howendobler was summoned as garnishee in a suit by attachment instituted in the Nodaway circuit court by appellant Holker, against the defendants Hennessey, Green et al. This is an appeal from a judgment of said circuit court sustaining a demurrer of the garnishee, Howendobler, to the reply of the plaintiff Holker to the garnishee’s answer denying possession of any effects or credits of, or any indebtedness to, the defendants. By mistake the appeal was taken to the Kansas City Court of Appeals, and thence transferred to this court. Since the appeal the plaintiff has died and the cause has been revived here in the name of his administratrix, Margaret M. Holker. . The facts stated in the reply, as epitomized in tho brief of counsel for appellant, are as follows: “1. That Ed Hennessey and John Green, with their codefendants in the attachment suit, were justly indebted to the appellant in the. sum of $5,233.33 for — 85 — having on the 13th day of June, 1894, feloniously stolen that sum from appellant. “2. That for the commission of said felony, said Hennessey and Green were, at the June term, 1894, of the Nodaway County Circuit Court, indicted, and for want of bail were committed to the jail of Nodaway county, then in charge and kept by one Benjamin E. Pixler., sheriff of said county. “3. That at the date of their commitment the circuit court, by its Order entered of record, fixed the amount of bail to be required of said Hennessey and said Green each severally at the sum of $4,000. “4. That on the 13th day of September, 1894, while the Honorable Cyrus A. Anthony, judge of said court, was absent from the county, the said Hennessey and Green, their codefendants in attachment, acting with them, in order to procure the release of said Green from custody, did deliver to and deposit with the garnishee, John M. Howendobler, and one Elmer Eraser, subject to the order of this garnishee, the sum of $2,500 with the understanding that the same be paid back to Green on the release of Howendobler from liability upon a recognizance which they induced said Howendobler to then sign in the sum of $2,500, said pretended bail bond being taken for said Green’s appearance at the November term of said court, 1894. “5. That on the 24th day of September, 1894, while the judge of said court was absent from the county, the said Hennessey and Green, their codefendants acting with them, in order to .procure the release from custody of said Hennessey, did deliver to and deposit with said garnishee the further sum of $2,500 to induce said garnishee to sign another pretended bail bond for the appearance of said Hennessey at the November term, 1894, in the sum of $2,500. — 86 — “6. That said pretended bail- bonds were accepted by Sheriff Pixler, and said Hennessey and Green were released from jail on account thereof. “7. That the money so left with the garnishee was left as indemnity against legal liability on account of the garnishee having signed said pretended bonds. “8. That said pretended bail bonds were and are void and of no virtue and effect in law. “9. That said Sheriff Pixler was without legal authority to receive, accept or approve said bonds or either of them. “10. That no order of court, nor the judge thereof in vacation, nor the clerk thereof, authorized the making, taking or accepting of said bonds. “11. That the amount of each of said bonds, to wit, $2,500, was not indorsed upon the warrant of arrest or on the commitment upon which the said Green and said Hennessey were arrested and held. “12. That by reason of the foregoing facts the garnishee has in his custody the sum of $5,000 of the property of said Green and Hennessey, and their co-defendants in attachment, subject to this garnishment proceeding.77 I. According to the allegations of the reply the money was deposited with the garnishee to indemnify him against liability as surety on the bail bonds taken by the sheriff, by means of which the release of the said Hennessey and Green, from the custody of the sheriff in which he was then held to answer an indictment for a felony, was procured. The only question raised by the demurrer is, whether the said Howendobler can be charged as garnishee as to the money so deposited,while the bail bonds thus given remain in such force as they had when they were taken, when the money was deposited, and when the garnishment was served. It is settled law in this State that “in order that an — 87 — indebtedness may be liable to garnishment it must be shown to be absolutely due as a money demand, unaffected by liens or prior incumbrances or conditions of contract” and that except in cases of fraud, “the creditor can claim no higher rights against the garnishee than the debtor could claim against him.” Scales v. Southern Hotel Co., 37 Mo. 520; Weil v. Tyler, 38 Mo. 545; McPherson v. Railroad, 66 Mo. 103; Fenton v. Block, 10 Mo. App. 536. “The indebtedness, to be the subject of garnishment, must be certain, not depending upon contingency. There must be no condition precedent, no impediment of any sort between the garnishee’s liability, and the defendant’s right to be paid such as the attaching creditor himself can not remove.” Mercantile Co. v. Bettles, 58 Mo. App. 384; Drake on Attachments, sec. 551. • In a recent excellent work on this subject the rule deduced from authorities cited from nearly all the States is thus stated: “Contingent liability on contract affords no ground for garnishment. So long as it is uncertain whether the garnishee owes the defendant, he can not be charged, as the attaching creditor can have no greater right by subrogation than the defendant has directly against the garnishee. The rule that there can be no garnishment judgment on a conditional contract or contingent obligation is too well settled to require comment. Debt is different from attached property, which, under some circumstances, may be held until uncertain ownership has been settled.” Waples on Attach, and Gar. [2 Ed.], sec. 373, p. 272. The facts stated in the reply fail to show a money demand absolutely due from the garnishee to the defendants in the attachment suit. On the contrary, it shows only a possible contingent liability, dependent upon a discharge of the conditions of the bond, or the release of Howendobler from any liability thereon in some other way. That he has been so discharged or — 88 — released, is not contended, but the contention is that the bond not having been taken in áccordance with the requirements of the statute, no legal obligation for the penalty thereof was imposed upon the obligors. But that is a question that can not be determined in this case so as to protect the garnishee. That is a question between the obligee and the obligors on the bond, in the determination of which the judgment in this case would have no force. Strauss v. Ayres, 87 Mo. 348. It may turn out when that question comes to be investigated in a proper case between the proper parties that appellants’ counsel may be mistaken in their views upon that subject, or if, perchance, the garnishee, (the surety upon the bonds) should feel disposed in such a case to'contest the validity of the bonds, and be- successful, he would still be entitled to indemnity under his contract for the expense of such contest, his liability to the defendant being still contingent. The vice of appellant’s argument is in assuming that these bonds are nullities and can be so declared in this action, neither of which propositions is true. It may be that the bonds are voidable and would be avoided in an action between the proper parties, but they are not nullities. State ex rel. Jean v. Horn, 94 Mo. 162, and eases cited; Jones v. Gordon, 9 S. E. Rep. (Ga.) 782. They were executed by the garnishee in good faith for a valuable .consideration, moving directly to the defendants, and while as to their obligatory force, between him and those who received that consideration in whose shoes the creditor stands, there may be serious question (upon which we express no opinion), until that question is adjudicated and the surety’s liability on the bonds conclusively determined, the defendants have no right of action against the surety on the contract in question and consequently their creditor has none by garnishment. The contention that the plaintiff has a lien upon — 89 — the money deposited with the surety upon the bail bonds to indemnify him, which may be enforced by garnishment in the circumstances of this case, is ruled adversely to the plaintiff, on the authority of Holker v. Hennessey, 141 Mo. 527. The judgment of the circuit court is affirmed. Robinson and Williams, JJ., concurring.