Summary
In Jenkins, the St. Louis Court of Appeals affirmed the circuit court's judgment in favor of the garnishor, holding that the garnishee, an attorney, had no ownership interest in a settlement check made jointly payable to the garnishee attorney and his client, which the judgment creditor of the attorney's client had garnished.
Summary of this case from Penguin Props., LLC v. King David Fashions, LLCOpinion
No. 28173.
November 20, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
William C. Barnett, St. Louis, for appellant.
Milton F. Napier, St. Louis, D. W. Gilmore, Benton, (Louis E. Zuckerman, St. Louis, of counsel, on the brief), for respondent.
This is an appeal from a judgment against a garnishee, who, in his answer to interrogatories served upon him, stated that he did not owe any money to the defendant judgment debtor and did not have possession of any money or property belonging to him. The plaintiff filed a denial of the answer to which the garnishee filed no reply and the court found that the garnishee was indebted to the defendant in the sum of $1970.25, and directed that the sum be paid to the sheriff within twelve days. After the garnishee's motion for a new trial had been overruled and no payment, as directed, had been made, the court entered a judgment for $1970.25 against the garnishee, and it is from this judgment that he appeals.
The defendant, Lawrence Jenkins, was indebted to the plaintiff in the sum of $1955. This was a judgment debt which arose by virtue of a decree of divorce which gave to the plaintiff the care and custody of two minor children and awarded to her the sum of $75 a month for their support. The defendant had not made payments in compliance with the decree and there had become due $1955, for which amount an execution was issued.
A writ of garnishment was served upon William C. Barnett on January 12, 1950, attaching all money, credits, choses in action and debt due the defendant in the hands of the garnishee. This was followed by the plaintiff filing interrogatories in which she inquired of the garnishee if he had in his possession any goods, chattels, money, credits, etc. belonging to the defendant, or if he was indebted to the defendant, and, if so, the amount thereof. Another question propounded asked if the garnishee was bound by any contract to pay to the defendant money not yet due and a fourth question asked if the defendant was in the employment of the garnishee. To each of these questions the garnishee answered "no" and asked for release from further obligation under the writ that had been served upon him.
The plaintiff filed a reply in which she stated that the garnishee had been employed by Lawrence Jenkins, the defendant, as his attorney in a suit for damages arising out of personal injuries. She alleged that Barnett had brought an action on behalf of Jenkins against the Illinois Terminal Railroad Company and that a settlement had been reached whereby the Illinois Terminal Railroad Company paid to Jenkins, through his attorney, the sum of $3940.50. She stated that this amount was paid by a draft, dated January 12, 1950, which named as payees "Lawrence J. Jenkins and William C. Barnett, his attorney". The reply further asserted that the writ of garnishment had been served upon the garnishee immediately after the settlement had been concluded, and prayed that the garnishee be directed to deposit the draft with the registry of the court. The garnishee did not reply to the plaintiff's denial of his answer, and, a jury having been waived, the cause was tried by the court.
The decree of court awarding the plaintiff $75 a month for the support of her two minor children, dated September 26, 1947, was put in evidence and the plaintiff testified that none of the monthly installments had been paid. The garnishee was then called to the stand by the plaintiff, and in response to questions by her attorney he stated that he had represented Jenkins in a suit against the Illinois Terminal Railroad Company which had been settled for $5,000. This sum was credited with $1059.50, which Jenkins had received as sick benefits, and the balance of $3940.50 was paid by a draft payable to Jenkins and the garnishee as his attorney. On January 12, 1950, as Jenkins and Mr. Barnett were leaving the office of the lawyer where the settlement had been made, Mr. Barnett was served with the writ of garnishment. Mr. Barnett stated that the draft had been endorsed and the total amount for which it was drawn was on deposit.
On his own behalf the garnishee testified that Jenkins had agreed to pay him an attorney's fee equal to fifty per cent of the amount recovered and that there was due him as his fee $1970.50. He further stated that he had advanced some money to Jenkins and guaranteed the payment of other money Jenkins owed, but there was no testimony from which the total amount of the advancements claimed could be determined. Mr. Barnett also testified that Jenkins had assigned his cause of action to him in payment for the sums mentioned, but the written assignment offered in evidence, while not of record, was admittedly made after Mr. Barnett had been served with the writ of garnishment.
On July 13, 1950, the court found that the assignment was executed subsequent to the garnishment and was inferior to it and directed that the garnishee pay to the sheriff of St. Louis County $1970.25 within twelve days. Nothing was paid into court and a motion for a new trial was filed and was overruled on July 29, at which time a judgment was entered in favor of the plaintiff and against William C. Barnett, garnishee. On August 3, the garnishee filed a "Motion to Amend Judgment", which was overruled on October 23. Within ten days thereafter the garnishee appealed.
It is contended by the respondent that the appeal should be dismissed because no motion for a new trial was filed after July 29, the date of the judgment, and that the judgment therefore became final for the purpose of appeal upon that date. This contention overlooks the provisions of Supreme Court Rule 3.24 as it relates to authorized after trial motions and states, "The filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court." Within the ten days allowed for the filing of a motion for a new trial the garnishee filed his motion to amend the judgment, and since such a motion is authorized under Mo.R.S. 1949, Sec. 510.310, subsection 3, it deferred the finality of the judgment, for the purpose of appeal, under Supreme Court Rule 3.24 to the same extent that a motion for a new trial would have deferred it. The respondent's contention is therefore without merit and we move to a consideration of the points raised by the appellant.
The first of these is that the garnishee should not be held liable for having accepted or endorsed a draft unless the same was the property of the defendant at the time the garnishment was served. As authority for this proposition, we are cited to Mo.R.S. 1949, Sec. 525.030, which states that no garnishee shall be so charged by reason of having accepted, made, or endorsed any draft in its nature negotiable, unless it be shown at the hearing that such draft was the property of the defendant when the garnishee was summoned. The draft in question was the defendant's at the time the summons was served, as we shall elaborate on more fully later, so this section in no way relieves the garnishee.
It is next asserted that a garnishment is a statutory proceeding by which equitable rights cannot be reached. This raises no point for consideration, for the proceedings and relief granted did not in any way partake of an equitable action, and no error is evident upon this score.
The appellant's next contention is that joint funds are not subject to garnishment for the judgment debt of one owner. We are cited to Macks v. Drew, 86 Mo.App. 224; Schnellmann v. Bank, 123 Mo.App. 188, 100 S.W. 575; and Hamra Bros. v. Herrell, Mo.App., 200 S.W. 776. The first two of these cases have to do with funds jointly owned by husband and wife, and the third relates to jointly owned crops. None of these is germane to the facts presented here, for there is no joint fund involved. The fact that the draft named Jenkins and Mr. Barnett, his attorney, as payees did not vest any ownership in Mr. Barnett. It was his client's settlement, and Barnett was named as payee in his capacity as attorney for Jenkins, so that he might enforce the lien that he had upon his client's suit. A joint fund means a fund in which two or more persons have a property right. All the garnishee had, by reason of his services as attorney, was a lien, and as we stated in Koenig v. Leppert-Roos Fur Co., Mo.App., 260 S.W. 756, 758; "A lien is not a property in or right to the thing itself, but constitutes a charge or security thereon." The question of joint funds therefore is not in the case.
Some question is raised about the issues present in a garnishment action, but that has been clearly set out in Mo.R.S. 1949, Sec. 525.190, which states: "In all cases where the answer of the garnishee is denied, the denial shall contain, specially, the grounds upon which a recovery is sought against the garnishee; and the garnishee shall be entitled to a reply, and the issue or issues made up on the denial and reply shall be the sole issue or issues tried, and the issue or issues shall be tried as ordinary issues between plaintiff and defendant."
This means that the denial of the garnishee's answer holds the same place in such actions as a petition does in an ordinary lawsuit, and the reply of the garnishee to the plaintiff's denial is equivalent to an answer in other cases. Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835. It is true that the liability of the garnishee is measured by his liability to the defendant. Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W.2d 39; Cusick v. Cusick, Mo.App., 201 S.W.2d 437. However, where such a debt is pleaded by the plaintiff's denial of the garnishee's answer, the garnishee must set up the defenses, he desires to raise, in his reply, and where the plaintiff conclusively proves a debt owing to the defendant by the garnishee, as was done here, the garnishee must then put on his affirmative defenses. There was nothing in the evidence offered by the garnishee except general statements and conclusions to the effect that he had advanced money for the defendant which about equaled the balance left of the settlement after deduction of the attorney's fee and none of these alleged debts had been pleaded for no reply was filed.
The judgment of the court does not affect the attorney's fee claimed but is for one-half of the settlement reached, or $1970.25. It is contended that this is excessive by $15.25, because the execution was for $1955. This contention overlooks the fact that the execution was also for interest on the debt due and the interest was considerably in excess of $15.25.
It is the recommendation of the Commissioner that the motion to dismiss the appeal be overruled and the judgment affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The motion to dismiss the appeal is accordingly overruled and the judgment of the circuit court affirmed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.