Brown & Hamm v. Gummersell

Peers, J., delivered the opinion of the court. Prom the record in this cause it appears that the, plaintiffs obtained a judgment in the St. Louis circuit court against one L. A. McGinnis, for the sum of one hundred and twenty-five dollars, on which an execution was issued and placed in the hands of the sheriff, who, failing to find property belonging to McGinnis upon which to levy the execution, garnished the respondents and summoned them to appear and answer at the return term of the writ. In due time the defendants filed their answer to the interrogatories as follows: “To the said interrQgatori.esand each of them, these garnishees answer no, save as hereinafter set forth. The said Louis A. McGinnis did obtain a judgment in this court against these garnishees for the sum of abotit two hundred and thirty-six dollars, which judgment is still unpaid, but these defendants have been notified and informed, and, therefore, assert, that said Louis A. McGinnis had not at any time any right, title, or interest in said judgment or in the claim on which it was founded, and merely brought the suit in which said judgment was rendered for and as the agent of Wm. L. D. Shultz and others, who were and are the true owners of said judgment and of the promissory notes for which said judgment [344] •was rendered, and was merely a nominal plaintiff and trustee therein in so doing.” Thereupon, Foster, Shultz, and Kinealy filed an interplea under oath claiming to be the owners of the property garnished, which plea, upon motion of the plaintiffs, was stricken out by the court. A denial of the answer of the garnishees was filed by the plaintiffs, and a reply by the defendant garnishees. The issue thus raised was submitted to a jury, and a verdict and judgment rendered for the defendants, from which the plaintiffs appeal to this court, insisting upon a reversal: (1) Because the trial court admitted illegal :and improper testimony, and (2) because the court refused proper and legal instructions offered by the plaintiffs. The answer of the garnishees and the denial thereof by tíie plaintiffs raised an issue of fact, and the evidence bearing on this issue was the only testimony in the case. The evidence on this point tended strongly to show that McGinnis was not the owner of the original judgment, having no interest therein directly or indirectly, being a nominal party only, — and whatever may be our views of one who loans his name for such purposes, yet the testimony was clearly admissible under the pleadings as bearing on the question of fact, and we do not feel justified in reversing the judgment on that ground. The first instruction asked by the plaintiffs and refused by the court told the jury that the plaintiffs were entitled to recover unless an interplea was filed in writing claiming the property by third persons, and such interplea having been stricken out by the court, plaintiffs were entitled to a judgment. The court properly refused this instruction and in doing so followed the law as laid down in Wolff v. Vette, 17 Mo. App. 36, 37, where the subject is discussed in an opinion by Rombauer, J., and the distinction drawn between garnishment under execution' and garnishment under the .statute concerning attachments. [345] The other three instructions refused by the court referred to the evidence and the credibility of witnesses, and upon a very careful examination of each and all of them, and a thorough investigation of all the points and authorities referred to by the plaintiffs, we find no reversible error in the record. The judgment of the lower court will, with the concurrence of the other judges, be affirmed.