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Page 822

Wright, State v. (Mo. App.).

...1199 Young, Smith v. (Mo. App.).

Wright v. Wabash R. Co. (Mo. App.).. 549 Youngblood, Edwards v. (Tex. Civ. App.) 288
Youngblood, Edwards v. (Tex. Civ. App.) 289
Zapp, Fidelity Mut. Life Ins. Co. of Phila-
delphia, Pa., v. (Tex. Civ. App.)..
Ziegler, Spalding v. (Mo. App.).
Zimmerman v. Baugh (Tex. Civ. App.).
Zoeller, City of Louisville v. (Ky.)...... 500



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Yancey v. Bruce (Ark.).....
Yates, Chenault v. (Ky.).
Yoakum County v. Slaughter (Tex. Civ.


Yontz v. Missouri Pac. R. Co. (Mo. App.) 832
Youmans v. Everett (Mo. App.)........ 274


[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]


Caesar's Adm'r v. Louisville & N. R. Co., 159

S. W. 708.
Chesapeake & O. R. Co. v. Johns' Adm'x, 159
S. W. 822.

Commonwealth v. Hazel, 159 S. W. 673.

Evans v. Bates, 159 S. W. 612.
Gleason v. Weber, 159 S. W. 976.

Jean v. Brentlinger, 159 S. W. 1139.

Louisville R. Co. v. Furnas, 159 S. W. 994.

See End of Index for Tables of Southwestern Cases in State Reports




GOOD v. SLEETH et al.

(St. Louis Court of Appeals. Missouri. July 16, 1913. Rehearing Denied Nov. 4, 1913.) 1. SHERIFFS AND CONSTABLES (§ 90*)-IN


Rev. St. 1909, § 7551, providing that if a constable levy an execution on "goods or chattels," and any third person claim such property. the constable, "before proceeding to sell such property," shall take of the plaintiff a bond to indemnify him against all damage sustained in consequence of the "seizure and sale of the property on which the execution shall have been levied," and all damages sustained by the claimant in consequence of such seizure and sale did not authorize a constable to require a bond to indemnify him and a claimant against damage from the seizure and "payment" of money to the judgment creditor under a writ of garnishment, especially where the money was not even seized but came into the constable's hands pursuant to an agreement between the creditor, the garnishee, and the claimant.

[Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 129, 130; Dec. Dig. § 90.*]

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It appears that on September 22, 1902, Parkhurst Sleeth and Merrifield Huff obbefore a justice of the peace of St. Francois tained a judgment against one John McBrien township, St. Francois county, Mo., in the sum of $225; that thereafter, on or about January 14, 1910, this judgment was revived in the name of Parkhurst Sleeth, individually, and Parkhurst Sleeth, administrator of the estate of Merrifield W. Huff, the latter having died in the meantime; that thereafter, on September 3, 1910, an execution issued from the justice court against the said judgment debtor, John McBrien, the same being delivered to the constable, William Good, plaintiff herein; that on or about the 10th day of September, 1910, the constable executed said writ by summoning one Harry E. Highley as garnishee to appear before the justice of the peace on September 16, 1910, to answer such interrogatories as might be exhibited against him touching his indebtedness to the said John McBrien, and by then and there attaching, in the hands of said Highley, all debts due or owing by him

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

to said John McBrien, and particularly the | ment, viz.: "Now, on this 19th day of Sepsum of $352.91 then in his possession.

It appears that, at the time of the service of the writ of garnishment on Highley, the latter was indebted to either John McBrien or the latter's wife, Mary McBrien, in the said sum of $352.91 for cattle which had been sold and delivered to said Highley by John McBrien. It was claimed by both John McBrien and Mary McBrien that the cattle so sold were the property of Mary McBrien; that they had been sold by John McBrien as her agent; and that the proceeds of the sale thereof were due to her.

tember, it appearing to the court that the answers of garnishee admit that he owed defendant John McBrien the sum of $352.91 and has paid said sum to the constable, it is therefore adjudged that plaintiffs are entitled to said sum of $352.91, and the constable is directed to turn said sum over to plaintiffs, less costs of suit. It is further ordered that the garnishee be discharged, with his costs."

It appears that on or about September 16, 1910, Mary McBrien delivered to the constable, plaintiff herein, a written notice, verified by affidavit, that she claimed the said fund of $352.91 paid into the hands of the constable by the garnishee as aforesaid; and that thereupon, on September 20, 1910, the constable made demand in writing upon Parkhurst Sleeth individually and as administrator of the estate of Merrifield W. Huff, deceased, to execute and deliver to him, as said constable, a bond; and that thereafter, on September 21, 1910, the appellants herein executed and delivered to the constable the bond here sued upon, whereupon the constable paid to Parkhurst Sleeth individually and as administrator as aforesaid the said fund in his hands.

It appears that on the afternoon of the day upon which the writ was executed, viz., September 10, 1910, an oral agreement was entered into at the office of the justice of the peace between counsel for the execution creditors, counsel for John McBrien and Mary McBrien, and Highley, the garnishee, to the effect that the money in the latter's possession would be turned over forthwith to the constable. Just what was the precise conversation had does not appear, though it does appear, and we think clearly, that the understanding and agreement was that the ownership of the cattle, and the right to the proceeds thereof in question, would be tried and determined in the garnishment proceed- The bond is conditioned as follows: "Now, ing before the justice; that an interplea on if the said Parkhurst Sleeth, as administrathe part of Mary McBrien was contemplated; tor of the estate of M. W. Huff, deceased, and that the constable would merely hold the and Parkhurst Sleeth individually shall infund pending a judgment of the justice in the demnify the said William Good, constable as premises. Pursuant to the agreement had, aforesaid, against all damages and costs the fund was delivered to the constable; the which he may sustain in consequence of the latter executing to the garnishee the follow-seizure of said $352.91 and payment of same, ing receipt: "352.91. Sept. 10, 1910. Re- or any part thereof, to said Parkhurst Sleeth, ceived of Harry Highley three hundred and administrator as aforesaid, and Parkhurst fifty-two and 91/100 dollars. The same to be Sleeth personally, and moreover shall pay held by me until the garnishment suit pend- and satisfy said Mary McBrien all damages ing in the case of Sleeth et al. v. John Mc- which she may sustain in consequence of such Brien and Harry Highley, as garnishee, is seizure and payment of same, this bond to be determined. The sum herein paid being re- void, otherwise to remain in full force and posited by garnishee. Wm. Good, Constable." effect."

Thereafter, on September 16, 1910, the garnishee, Highley, filed his answers to the interrogatories as follows: "Answer to first interrogatory: I had no money of defendant except as stated in my answer to interrogatory No. 2. Answer to second interrogatory: At the time of the service of the writ of garnishment, I owed and was indebted to defendant John McBrien, for cattle purchased from him, the sum of approximately $1,454.07. Of this amount, by agreement between plaintiffs and defendant, I paid to the constable of this court the sum of $352.91 to abide the judgment of this court, which said sum was paid on the date of service of notice of garnishment; the balance of said debt I paid to John McBrien in pursuance of agreement between said plaintiffs and defendant. Therefore, having paid into court the amount aforesaid, and having fully answered in this behalf, garnishee asks to be discharged." |

Thereafter, on September 19, 1910, the jus

The relator, Mary McBrien, now prosecutes this suit in the name of the constable, William Good, averring that, at the time of the service of the writ of garnishment on Highley, the latter was indebted to her in the sum of $352.91 for cattle sold by her husband as her agent, and that she had sustained damages in the sum of $352.91 in consequence of the "seizure and payment of the said $352.91," alleging a breach of the obligation of the bond in that the principals and sureties thereon had not paid over and satisfied her for the "damage which she has sustained in consequence of the seizure of said $352.91 and the payment of the same by the said William Good, constable, to said Parkhurst Sleeth individually, Parkhurst Sleeth, administrator," etc. And the petition prays judgment for $700, the penalty of the bond, and costs, to be satisfied upon the payment of $352.91, with interest from September 10, 1910, and costs.

indebted to Mary McBrien, denied that the cattle sold were hers or that the proceeds thereof belonged to her, averred that the garnishee deposited the fund in question with the constable in pursuance of an agreement between John and Mary McBrien, and their attorney acting for them, and Parkhurst Sleeth, to the effect that the money so deposited should abide the result of the garnishment suit then pending. The answer then sets up the answer of the garnishee to the interrogatories propounded to him, the judgment of the justice of the peace in the garnishment proceeding, and avers that by reason of the agreement aforesaid, and the said judgment, the relator is estopped from further claiming said fund. The answer denies a breach of the bond or that the relator, Mary McBrien, was damaged in con-existed at common law did not obtain in this sequence of the seizure and payment over state as to a constable, for the reason that of the $352.91. And the answer further avers justices of the peace in this state have no that Mary McBrien was not, at the time of common-law jurisdiction; that the right of the service of the writ of garnishment, in a constable to demand an indemnifying bond good faith the owner of the cattle or the exists only by virtue of the statutes of this proceeds of the sale of the same, but that state." her pretended ownership thereof was fictitious and fraudulent and made collusively with her husband for the purpose of aiding and abetting him in covering up his property to defeat his creditors and for the purpose of defrauding Parkhurst Sleeth and the estate of which he was administrator. The reply was a general denial of new matter in the answer.

At the close of plaintiff's evidence the defendants offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court. And a like instruction offered at the close of all the evidence in the case was likewise refused. The cause was submitted to the jury upon instructions which we deem it unnecessary to set out.

[1] The appellants urge that their demurrer should have been sustained. The authority of the constable for requiring the giving of a bond under the circumstances is predicated upon section 7551, Rev. Stat. 1909. This section, of which we italicize certain portions, is as follows: "If a constable levy an execution on any goods or chattels, and any person other than the defendant in the execution claim such property, and deliver to the constable a written notice of such claim, verified by the affidavit of the claimant or his agent, describing the property claimed, and stating his interest therein, whether it be in whole or in part thereof, and that he is, in good faith, the lawful owner of the interest claimed by him in said property, that the defendant in said execution has no right or title whatever in the interest claimed, and that said claim is not made in collusion with the defendant, for the purpose of vexing, hindering or delaying the plaintiff in obtaining his just rights, the constable, before proceeding to sell such property, shall take of

good security, and conditioned to indemnify him against all damages and costs which he may sustain in consequence of the seizure and sale of the property on which the execution shall have been levied; and, moreover, to pay and satisfy any person or persons claiming title to such property, all damages which such person or persons may sustain in consequence of such seizure and sale."

[2] In Smith ex rel. v. Rogers, 191 Mo. 334, 90 S. W. 1150, the court reviews its earlier decision in State ex rel. O'Bryan v. Koontz, 83 Mo. 323, saying that in the latter case: "After a learned and exhaustive discussion of the rights of an officer at common law to demand an indemnifying bond, in the absence of statutory authority so to do, the conclusion was reached that such rights as

We are unable to see how the statute quoted above could confer upon the constable, the plaintiff herein, any right or authority to demand the giving of this bond. The statute, by its terms, permits and authorizes the constable to take a bond if he shall levy an execution on any goods or chattels and any person other than the defendant in the execution shall claim such property, etc. Upon compliance with the provisions of this section by the third person claiming the property, the constable, before proceeding to sell such property, is authorized to take a bond payable to himself, conditioned to indemnify him against all damages and costs which he may sustain in consequence of the seizure and sale of the property, and to pay and satisfy any person or persons claiming title to the property all damages which they may sustain in consequence of such seizure and sale. Here there was no execution levied upon any goods or chattels, but the proceeding was one in garnishment. Neither the plaintiff nor the relator suffered any damages in consequence of the seizure and sale of any property. There cannot be said to have been even a seizure of the money, for, while the garnishment writ was served, the fund in question came into the hands of the constable by and through an agreement with the relator and with her consent. The statute by its terms could not apply to the situation here presented, and the officer, under the circumstances, could not lawfully demand the giving of such bond. It will be observed that the bond does not follow the statute but is conditioned that Parkhurst Sleeth personally and as administrator shall indemnify the constable against damages and costs in consequence of the seizure of the fund in question, and the payment of the same, or any part thereof, etc., and shall

may suffer in consequence of such seizure, Rothan, 41 Mo. App. loc. cit. 610. In Schaand payment.

wacker v. Dempsey, 83 Mo. App. loc. cit. 352, upon the authority of Wimer v. Pritchartt and Straus v. Rothan, supra, it is held that there is no right to interplead in garnishment proceedings under executions issued from the circuit court. The holding in Wimer v. Pritchartt, supra, appears to have been disapproved in Smith v. Sterritt, 24 Mo. 260, where the right to interplead in a garnishment under an execution in a justice court was recognized, and it is clear that the Wimer Case was so decided for the reason that the statutes there under consideration provided for an interplea only in garnishments under attachments and not under executions. See section 34, c. 11, p. 153, and section 6 of chapter 61, p. 476, Rev. Stat. 1845.

Since the early decisions on this subject our statutes have undergone many changes, and there appears to be some confusion in the cases which touch upon this subject. The question would seem to be now controlled by the provisions of article 3 of chapter 66, Rev. Stat. 1909 (§§ 7732-7748), relating to garnish

[3] It is urged by learned counsel for respondent that section 2204, Rev. Stat. 1909, relative to bonds of this character, used the words "personal property," which counsel says includes money or credits. It is quite clear, however, that the latter section has no application here, and that the right of the constable to demand such a bond is controlled by section 7551, supra. Respondent's counsel, however, urge that, though the bond be not authorized by statute and not a statutory bond, nevertheless its validity does not depend exclusively upon whether the constable was empowered by statute to exact it but that its execution is to be regarded as voluntary and as creating a valid commonlaw obligation. It is true that such bonds are ordinarily considered as not having been given under duress, and that their execution creates a binding obligation, unless prohibited by the policy of the law. See Smith v. Rogers, 99 Mo. App. loc. cit. 261, 262, 73 S. W. 243. It is quite clear that the constable had no common-law right to demandments before a justice of the peace. By secthe giving of the bond; but whether a bond tion 7732 of that article it is provided that, given under such circumstances may be held "if there be not sufficient goods and chattels to be a valid obligation as having been vol- whereon to levy an execution, the constable untarily executed is a matter which we need shall summon in writing, as garnishees, such debtors not decide. In Smith ex rel. v. Rogers, 191 as may be named to him by the plaintiff or his agent," etc., to answer Mo. 334, 90 S. W. 1150, the contrary appears interrogatories, and that "like proceedings to be intimated, though that question was shall be had thereon before the justice to not there directly involved, neither was it final judgment and execution, as in suits inin State ex rel. O'Bryan v. Koontz, there stituted by attachment in justices' courts." referred to; the latter being an action upon Section 7745 of this article provides that "any a constable's official bond for releasing prop- person claiming property, money, effects, or erty seized, upon the failure of an attaching credits attached may file his interplea, in creditor to furnish a bond, and dealt ex-writing, in the cause, supported by affidavit; clusively with the officer's right to require and verbal issues may be taken to such intera bond under the circumstances involved. plea, and shall be tried as issues between The case before us seems to be controlled plaintiff and defendant in ordinary cases, by other considerations to which we shall and without unnecessary delay." Succeeding sections provide that the justice shall file such interplea and note the filing thereof and the substance of the issues upon his docket; and that no judgment shall be rendered against the garnishee until the issue upon such interplea shall be determined.

hereinafter refer.

It appears that the fund in question was paid into the hands of the garnishee in pursuance of an agreement to which the relator, Mary McBrien, was a party, pending the determination of the garnishment proceedings; and we think it conclusively appears that this was done with the understanding that the relator would abide the result thereof. At that time she contemplated filing an interplea, though it seems that thereafter she was advised that she could not do so. At any rate, she took no further steps in the premises except to later notify the constable that she claimed the property.

There are cases in this state holding that a third party cannot interplead in a garnishment under an execution, but that such right obtains only in a garnishment under an attachment. Such is the early case of Wimer v. Pritchartt, 16 Mo. 252, which case arose in the St. Louis Court of Common Pleas and which is followed by dicta in State, to Use,

When the various sections of the statutes above referred to are read and construed together, it would seem that the legislative intent was not to exclude the right to interplead in a garnishment under an execution in a justice court but that the intention is to confer such right. The use of the word "attached" in section 7745, supra, should not be construed as making that section apply only to garnishments in attachment suits, for it seems quite clear that the use of this term is merely in keeping with the form and effect of the garnishment writ, which, in conformity to the law governing such writs, and whether it issues under an attachment or an execution, summons the garnishee to appear and answer interrogatories and attaches in

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