Opinion
No. 28009.
February 20, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Frank Mashak, of St. Louis, for appellant.
George Grellner, Harry N. Soffer and Joseph Nessenfeld, all of St. Louis, for respondents.
This is an appeal by plaintiff, the judgment creditor, from a judgment discharging the garnishees in a proceeding in garnishment in aid of an execution sued out upon a judgment in an action for divorce.
Plaintiff, Matilda M. Sheridan, had previously obtained a decree of divorce from her husband, John Joseph Sheridan, by the terms of which she had been awarded the custody of two minor children with an allowance of $7.50 a week for the maintenance of each of them, and with a further allowance of $75 as an attorney's fee.
Nothing having been paid by the defendant husband in satisfaction of his obligations under such decree, plaintiff sued out an execution in the amount of $1,686.50, and directed that Walter L. Short, Sr., and Walter L. Short, Jr., be summoned as garnishees.
The Shorts were engaged in business under the name of Supreme Do Nut Company, and Sheridan, the judgment debtor, was in their service as a salesman of their products. The purpose of the garnishment was to attach in the garnishees' hands all wages or other amounts that might be due and belonging to defendant Sheridan.
Service of the writ was only had upon Walter L. Short, Sr., and not upon Walter L. Short, Jr.
At the return term interrogatories were filed by plaintiff; and in an attempt to prove service of the same upon Walter L. short, Jr., plaintiff introduced in evidence a registered return receipt which had been signed, not by Short, but by one Schuermann, an employee in his office. While not denying Schuermann's signature on the receipt, Walter L. Short, Jr., testified that he had never seen the interrogatories. There was no claim of service of the same upon Walter L. Short, Sr., the only garnishee who had been summoned.
Thereafter the court granted a default and inquiry as to the indebtedness of the garnishees, and at plaintiff's request issued a subpoena duces tecum directed to both the Shorts and commanding them to produce Sheridan's employment record. In response to the subpoena Walter L. Short, Jr., appeared in court at the specified time, but the court was not then in session, and no hearing was had or order made.
The case was meanwhile placed upon the dismissal docket, but on the day for dismissal it was removed from such docket and reinstated upon the trial docket. On the same day Walter L. Short, Jr., appeared in court under a writ of attachment, bringing with him Sheridan's employment record. Plaintiff thereupon moved orally for an order in her favor against the Shorts, and introduced evidence in support of her motion.
At the conclusion of the hearing the court found that the garnishees had not been indebted to Sheridan, and entered judgment that they be discharged, but with the costs assessed against them upon the ground that they had failed to comply with the law relating to garnishment proceedings, and had thereby put plaintiff to the trouble and expense of suing out a subpoena duces tecum as well as a writ of attachment against Walter L. Short, Jr.
Following the entry of such judgment, plaintiff filed her motion for a new trial or, in the alternative, for the entry of judgment in her favor; and upon the same being overruled, she gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
Whether the court ruled properly in discharging the garnishees depends in the last analysis upon whether there was evidence to show an indebtedness subject to garnishment. In other words, unless it were made to appear that the garnishees owed something to Sheridan which could have been attached by service of the notice of garnishment, they were under no liability to plaintiff as a garnishing creditor, whose rights against them were to be measured by any claim which Sheridan himself might have asserted against them. Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W.2d 39.
The whole question turns upon the effect of the contract which Sheridan had with the garnishees for the sale of their products.
The garnishees are in the business of the baking and sale of doughnuts. Under the system by which they operate, their drivers "job" the doughnuts, by which is meant that they handle them on consignment for sale to their customers. At the end of each day they account to the company for the doughnuts they have sold, and retain as a commission all proceeds received by them in excess of the stipulated amount which they are required to pay over to the company. The only exception is that they also turn in to the company out of their commissions whatever sums are to be accounted for as withholding taxes and the like. Sheridan operated under this arrangement, and was guaranteed a minimum of $50 a week in commissions, but invariably earned more than such amount. As the court pointed out, there was nothing to suggest that such method of doing business had been entered into after service of the writ upon the garnishees, or that it was adopted for the purpose of hindering any of Sheridan's creditors in realizing on their claims.
It thus appears that whatever money Sheridan earned accrued to him personally as his commission whenever he made a sale of doughnuts, and that the company never owed him such amount. Had his weekly sales ever brought him less than $50 in commissions, the situation might have been somewhat different, but no such contingency ever arose. Likewise whatever sums he turned in to the company for withholding taxes and the like came out of his own money and not out of money owed him by the company. There was no proof of any indebtedness on the part of the garnishees which could have been reached by or subjected to the process of garnishment, and the court ruled properly in discharging the garnishees. Hartsfield Co. v. Zakas Bakery, 50 Ga. App. 284, 177 S.E. 825.
The irregularities occurring in the proceedings below do not in any way affect this result. The garnishees make some criticism of the court's action in assessing the costs against them, but if they wished to have such action reviewed, they should have appealed in the ordinary course.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.