text:
    CITIZENS NATIONAL BANK OF KANSAS CITY, Appellant, v. DONNELL.
    In Banc,
    March 30, 1906.
    1. APPEAL: Reversal With Direction: Usury: Interest on Judgment. A cause of action tainted with usury bears no interest from the beginning of the action, and hence where suit is brought on an usurious note, that note will bear no interest so long as the note remains in action. Hence, where the debtor appeals from a judgment against him and the judgment is reversed with directions to enter up judgment for a specific sum, which was the principal of the debt with all interest purged out, that sum will not bear interest from the date the suit was commenced, for two reasons: first, because the note itself, being tainted with usury, bears no interest so long as it is in action; and, second, because the mandate of the court was a direction to the trial court to enter up judgment for a specified sum, and that court could enter up judgment for no other sum.
    2" -: Second Appeal: Law of Case. Matters adjudicated on a former appeal become the law of the case on a second appeal, and,'before matters so adjudicated will be reopened, cogent and convincing reasons must exist.
    3. INTEREST: Suit on Usurious Note: Statutory Interest on Principal from Demand. Where the holder of an usurious note sues on the note, and the court because of the illegal charge purges the debt of all interest, he cannot then, on the theory that tbe statute where no rate is agreed upon allows six per cent interest on account from date of demand and the commencement of a suit is demand, claim six per cent interest on the principal of the debt from the commencement of the suit. He did not sue on account, but on the note, and he cannot change the whole nature of his demand when judgment is about to fall.
    Appeal from Jackson Circuit Court. — Now. W. B. Teasdale, Judge.
    Affirmed.

      . Warner, Bean, McLeod, Bolden <& Timmonds for appellant.
    (1) Under a proper construction of the opinion of this court (172 Mo. 384), plaintiff is entitled to legal interest on the original debt from the commencement of the suit. There is nothing in the opinion to warrant a contrary construction. This court waded through the record, ascertained the different items going to make up the original indebtedness, set them out in tabular form, in the body of the opinion, but did not state any amount for which judgment should be rendered. It simply ascertained and stated in tabular form the items going to make up the original indebtedness, and directed the court to render judgment “upon the following bases”— bases for the lower court’s consideration and computation. The rule announced in Brown v. National Bank, 169 U. S. 416, is that judgment should be given only for the original debt, with interest at the legal rate from the commencement of the suit. (2) Under the law plaintiff is entitled to recover interest on the original debt at the legal rate, from the commencement of suit. R. S., sec. 3705; Brown v. Bank, 169 U. S. 416; Bank v. Fitzpatrick, 63 S. W. 459; Haseltine v. Bank, 183 U. S. 132. By the adjudications in this case it has been determined that all usurious interest should be eliminated, and that the original debt is, and at the commencement of this suit was, a valid indebtedness, recoverable in this action. The Missouri statute (R. S. 1899, sec. 3705) provides that creditors shall be allowed to receive interest at the rate of six per cent per annum, when no rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made. The commencement of suit is a sufficient demand to entitle the recovery of interest from that date. Wolf v. Matthews, 98 Mo. 246; Brown v. Brown, 124 Mo. 85; Dempsey v. Schawacker, 140 Mo. 681.

      Eckuard P. Garnett for respondent.
    (1) The mandate of the Supreme Court did not direct the court to enter judgment for any interest from the commencement of the suit. The direction is to enter up judgment for the different sums loaned and advanced from time to time, aggregating the sum. of $19,-081.97, after giving credit for $5,500, proceeds of collection January 25,1898. Nqt a word said about entering judgment for any interest on these amounts. If the court had intended that any interest should have been added to this sum it certainly would have said so in plain words. This case was argued and submitted in the Supreme Court of the United States on this assignment of error. That is to say, one of the errors complained of and submitted to the United States Supreme Court was that the Supreme Court of Missouri denied the plaintiff the right to collect interest from the commencement of suit, and with the opinion of the Supreme Court before it, and the record in this case so construing the opinion, the Supreme Court of the United States affirmed the decision of the Supreme Court of Missouri, as thus interpreted. In other words, held that plaintiff was not entitled to collect this interest. Cit. Natl. Bank v. Donnell, 195 U. S. 369. The question is no longer open for discussion in this case. It is well settled that, on second appeal, only such questions will be noticed as were not determined on the former appeal. Butler Co. v. Bank, 165 Mo. 456; Coy v. West, 165 Mo. 452; Baker v. Railroad, 147 Mo. 140; Chapman v. Railroad, 146 Mo. 481. (2) To reverse and remand a case with specific directions to the trial court to enter up a given judgment, and, then, on second appeal, to reverse the case because the trial court did as directed, would be absurdly unjust to the trial court. Brown v. Bank, 92 Ky. 607; Bank v. Childs, 133 Mass. 248; Shaffer v. Bank, 53 Kan. 614; Lucas v. Bank, 78 Pa. St. 228; Danforth v. Bank, 48 Fed. 277; Bank v. Stauffer, 1 Fed. 188; Bank v. Hogueland, 7 Fed. 162; Guthrie v. Reid, 107 Pa. St. 275; Snyder v. Bank, 94 Ky. 231; Cake v. Bank, 86 Pa. St. 303; Bank v. Thompson, 101 Ky. 285; Shunk v. Bank, 22 Ohio St. 512; Fowler v. Equitable Tr. Co., 141 ül S. 405. (3) The section of the statutes and the decisions of the State of Missouri cited by counsel have no bearing in this case. They all refer to demands and suits on open accounts, and not written instruments.
   BRACE, C. J.

— This is the second appeal in this case. On the former appeal the judgment of the circuit court was reversed and the cause remanded to that court “for further proceedings to be had therein in conformity with the opinion of this court herein' delivered.” The opinion therein delivered is reported in 172 Mo. 384, and concludes as follows:

“Our conclusion is that the judgment should be reversed with direction to the trial court to enter up judgment for plaintiff upon the following bases:
“Dec. 29, 1893................ $15,000.00
Principal of overdraft on July 12, 1895 ...................... 474.24
Net credit on bank account on that day........................ 230.50
Credit on note of October 1, 1895.. 2,500.00
Principal of overdraft April 29, 1896 ...................... 874.81
Credit on account that date...... 2.42
Total amount loaned.... 19,081.97
Credit by proceeds of col. Jan. 25, 1898...................... 5,500.00”'

From the judgment of this court entered upon this opinion the plaintiff sued but a writ bf error, by which the ease was carried to the Supreme Court of the United States, where the judgment of this court was affirmed, 195 U. S. 369.

Pending the appeal in the United States Supreme Court, the original mandate was withdrawn, and, after the decision of that court, the case was again remanded to the circuit court with the same directions as before; and, in due course, coming on for final judgment in the circuit court, under the mandate and opinion of this court, the plaintiff asked the court to declare the law to be that plaintiff is entitled' to interest at the rate of six per cent per annum from the commencement of this suit on such sum as the court under the mandate and opinion of the Supreme Court may determine to be due and owing to plaintiff in this action, which the court refused to do, and entered judgment for the plaintiff for the sum of $13,581.97. To which action of the court, in refusing to allow it interest from the commencement of the suit, the plaintiff duly excepted, and appeals.

The case in hand and the judgment of this court therein could not he more clearly or tersely stated than it was by Mr. Justice Holmes, who delivered the opinion of the Supreme Court of the United States, as follows:

“This is a writ of error to the Supreme Court of Missouri on the ground that the plaintiff in error is denied the rights with regard to charging interest conferred upon it by the national banking act. [Rev. Stat: secs. 5197-5198.] The suit was brought by the plaintiff in error upon a promissory note for twenty thousand dollars, with interest at eight per cent, made on April 29,1892. The facts, shortly stated, are as follows: On October 29, 1892, the plaintiff bought the defendant’s note for $15,000, with interest at seven per cent. On July 12,1895, the defendant being behindhand with his payments of interest and also having overdrawn a hank account which he kept in the plaintiff’s hank, he gave the plaintiff a new note for $17,500, and interest at seven per cent, in' satisfaction of both liabilities. The amount of this note included three semiannual interest charges, of $525 each, with a few days ’ further interest, on the former note, with interest on this interest from the time it was due, and charges of one per cent or more a month on the amount overdrawn each month. It left the defendant with a credit on his bant account of $230.50. On April 29,1896, the note in suit and another note for $2,000 were given in satisfaction of the last note for $17,500, and of another note for $2,500, of October 1, 1895, with interest accrued on both, and of an overdraft of $919.90, and a balance of $2.42. The overdraft item included, as before, charges of about one per cent a month on the amounts actually overdrawn.
“The Supreme Court of Missouri held that the plaintiff must forfeit all interest from the beginning of the above transaction, and could recover only the original fifteen thousand dollars, the actual overdraft on July 12, 1895, four hundred and seventy-four dollars and twenty-four cents, the bank credit of two hundred and thirty dollars given the same day, the note of October 1, 1895, for twenty-five hundred dollars, the overdraft of April 25, 1896, of eight hundred and seventy-four dollars and eighty-one cents and the bank credit of two dollars and forty-two cents — in all, nineteen thousand eighty-one dollars and ninety-seven cents, less fifty-five hundred dollars collected on account since the action was begun. [172 Mo. 384.] ”

I. The cause was remanded to the circuit court with direction to enter a particular judgment, and the circuit court “had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed.” [Stump v. Hornback, 109 Mo. 272; Rees v. McDaniel, 131 Mo. 681; State ex rel. v. Edwards, 144 Mo. 467; Tourville v. Railroad, 148 Mo. 614; Riley v. Sherwood, 155 Mo. 37.]

Tlie direction to enter np judgment for plaintiff for the sum of $13,581.97 was no less specific than if the sum of $5,500 had in the direction been in fact deducted from the sum of $19,081.97 and that balance again shown as had been done in a former part of the opinion and judgment had been directed to be entered up for that particular sum in so many words and figures.

The data of “bases” given in the opinion on which the judgment was to be rendered, required a judgment for that amount and for that amount only and did. not include interest from the commencement of the suit, and there is nothing in the opinion to indicate that in remanding the case it was the intention of this court that such interest should be included; but, on the contrary, as intended by the court, and as constructed by Supreme Court of the United States, it was distinctly held in the opinion that the “plaintiff must forfeit all interest from the beginning” of the transaction.

In other words, the plaintiff’s cause of action by reason of its taint of usury bore no interest from the beginning; from which it follows as a necessary and logical consequence that plaintiff’s note as long as it remained in action merely could bear no interest, and the commencement of a suit thereon to recover the whole amount of the principal and usurious interest could not in the very nature of things change its character and purge it of its intrinsic vice and thereafter make it an interest-bearing cause of action. Nothing but a judgment in which it might be merged could “wash its sins away.”

Manifestly, the circuit court conformed to the spirit as well as to the letter of the mandate of this court in entering the judgment it did, and, in so doing, committed no error. If error there is, it is in the decision of this and not in the judgment of that court. And this is really the main contention of the plaintiff, a contention that might summarily be disposed of under the general rule that matters adjudicated on a former appeal become the law of the case on a second appeal. It is true there are exceptions to this rule, but cogent and convincing reasons.must exist to induce a re-opening, on the second, of questions decided on a former appeal. [Chambers v. Smith, 30 Mo. 156; Metropolitan Bank v. Taylor, 62 Mo. 338; Hamilton v. Marks, 63 Mo. 167; Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 359; Chapman v. Railroad, 146 Mo. 481; Bealey v. Smith, 158 Mo. 515.]

We fail to find such reasons in the argument of counsel in support of this contention.

II. It is, first, urged as a reason for the allowance of six per cent interest from the commencement of the suit, that section 3705, Revised Statutes 1899, provides that: “Creditors shall be allowed to receive interest at the rate of six per cent per annum, when no rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made;” that, “The commencement of suit is a sufficient demand to entitle the recovery of interest from that date. (Wolff v. Matthews, 98 Mo. 246; Brown v. Brown, 124 Mo. 85; Dempsey v. Shawacker, 140 Mo. 680);” and, that, although “plaintiff did forfeit all interest contracted for” — that is, “interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon,” “he has not forfeited, and no law says he shall forfeit, the legal rate of interest given him by the statute, on the original debt, from demand, or commencement of suit.”

The vice of the argument is that the statute and decisions invoked are not applicable to the case. If, instead of bringing its action on the note, and seguing to recover the usurious interest that was thereby agreed to be paid, and pushing its claim therefor to the uttermost in all the courts of the land to which it could be carried, the plaintiff, in the beginning, had stood in loco poenitentiae, purged the demand of its usury and instituted suit to recover only the original debt, to which it was entitled, the argument would have much force, for then the case would have been, in substance, an action upon an account or claim due where no rate of interest had been agreed upon, and the suit would have been equivalent to a demand for the purpose of starting the running of interest under this section of the statute, and the decisions thereupon. But, as we have seen, such is not the case, and the plaintiff could not at the last stage of the proceeding which it inaugurated, and at the last moment when the judgment was about to be pronounced, change the whole nature of its demand. Nor could the court enter judgment thereon in accordance with such, desired change. Repentance comes too late when judgment is about to fall. The plaintiff had then made its own bed, and it must lie in it.

We are able to see no principle upon which the claim for interest from the commencement of the suit could be allowed.

III. But, it is next contended that the Supreme Court of the United States has so decided, and for support of this contention a dictum to that effect in Brown v. Bank, 169 U. S. 416, is relied upon. The question which the Supreme Court of the United States was considering and deciding in that part of its opinion in that case in which this dictum occurs was whether interest included in a renewal note and for which a separate note is given thereby ceases to be interest within section 5197, Revised Statutes of United States of 1878. That was the question and the only question to which the argument therein was addressed, so far as the report of that case shows. The question whether in an action upon a usurious note in which judgment might be rendered only for the original debt, interest at the legal rate from the commencement of the suit should be allowed was not raised in the case, was not before the court for decision, and, hence, notwithstanding the dictum, cannot he said to have been decided. As authority for the proposition that interest so included in a renewal note does not cease to be interest within section 5197, supra, a part of the opinion containing that dictum was quoted by this court in its former opinion. But as evidenced by our decision, and the decision of the United States Supreme Court approving the same, this dictum was not considered authoritative on the point in question. Otherwise the circuit court would have been directed to include interest from the commencement of the suit in the judgment we directed to be entered.

We find no cogent and convincing reasons for reversing our former decision in this case; and, as the judgment of the circuit court was entered in strict conformity thereto, it ought to be and is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    CHICAGO HERALD COMPANY v. WILLIAM S. BRYAN et al.; NANNIE M. BRYAN, Garnishee, Appellant.
    (No. 2.)
    Division Two,
    April 10, 1906.
    1. APPEAL: Effect of Reversal. When a judgment is reversed the defendant in the judgment is, entitled to he restored to all he had lost.
    2. GARNISHMENT: No Judgment Against Defendant. Garnishment is one of the modes pointed out by statute by which an execution is executed. It is not a new suit. It is an incident or an auxiliary of the judgment in the principal suit, and a means of obtaining satisfaction of that judgment by reaching defendant’s property or credit. Therefore, if there-is no longer any judgment in the principal suit, the garnishment must fail.
    3. -: -: Reversal on Appeal: Judicial Notice. Where the judgment against the defendant in the principal suit was reversed on appeal without remanding the cause, the appellate court, when it comes to consider the garnishment proceeding will take notice of its own record, and will not permit the garnishee to be held, for there is no longer any judgment to support the garnishment. A garnishment proceeding cannot be based upon a void judgment against defendant.

      4. -: Where Tried. The garnishee must make his answer in the court whence the execution issues. It alone has exclusive control over its process.
    Appeal from St. Louis City Circuit Court. — lion. Franklin Ferriss, Judge.
    Reversed.

      8. T. Q. Smith and Thos. 8. Meng for appellant.
    (1) One cannot by garnishment process recover his own property or its value. Under the statute, notice of garnishment has only the effect of attaching money, property or effects of the defendant in the garnishee’s possession, or indebtedness owing to him. R. S., 1899, sec. 3436; Rood on Garnishment, sec. 47; Shattuck v. Smith, 16 Vt. 134; Johnson v. Brant, 38 Kan. 758; Lawrence v. McKenzie, 88 Iowa 439; Young v. Bank, 97 Mo. App. 583. The remedy by garnishment is purely statutory and cannot be extended to cases unprovided for, or to hold persons or property not made subject to the process. Cape v. Burgess, 135 111. 65. (2) In order to defeat the title of a person receiving a sum of money, actual notice must be shown of some defect of title in the person from whom it was received. Knowledge of facts which would have informed an ordinarily prudent person is insufficient. Bank v. Stoneware Co., 4 Mo. App. 283; “Wright Inv. Co. v. Fillingham, 85 Mo. App. 541; Bank v. Bank, 9 Martin (La.) 402; Wyer v. Bank, 11 Cush. 51; Crawford v. Bank, 1 Ross Leading Cases, 229; Stephens v. Bd. of Education, 79 N. Y. 186; Bank v. Hammond, 104 Mo. App. 410; Halm v. Bradley, 92 Mo. App. 405; Wilson v. Riddler, 92 Mo. App. 339; Wright Inv. Co. v. Frisco Realty Co., 178 Mo. 80. (3) The verdict did not find that any money or effects of the defendant were in the hands of the garnishee, or that she owed the defendant anything. It was irregular and unauthorized and afforded no basis for the subsequent judgment against the garnishee. E. S. 1899, sec. 3452. (4) Garnishment, being a mere auxiliary proceeding, must be in the same court in which the judgment was rendered. Spengler v. Kaufman, 43 Mo. App. 10; Tinsley v. Savage, 5(1 Mo. 142; Miller v. Bartlett, 89' Mo. 134; Gilbert v. Renner, 95 Mo. 151; Miller v. Mason, 51 Iowa 239; McGuire v. Pitts, 42 Iowa 538; Hughes v. Bank, 47 111. App. 567; Bank v. Dunn, 102 Ala. 207; Railroad v. Cookson, 45 N. J. 302; Garland v. McKittrick, 52 Wis. 264. The different divisions of the St. Louis City Circuit Court are as separate and distinct as courts held in separate circuits. Haehl v. Railroad, 119 Mo. 337; Voullaire v. Voullaire, 45 Mo. 607; State ex rel. v. Eggers, 152 Mo. 487. Consent of the garnishee cannot confer jurisdiction and the question may be raised at any time. Conner v. Pope, 18 Mo. App. 89 ; Epstein v. Salorgne, 6 Mo. App. 354; Hackett v. Gill, 63 Mo. App. 453; Fletcher v. Wear, 81 Mo. 532.

      Selden P. Spencer for respondent.
    (1) Dealings between husband and wife which result in the appropriation of property coming from the husband for the payment of debts claimed to be due to the wife, furnish uncommon opportunity for the perpetration of fraud, and must be carefully and rigidly scrutinized. Manchester v. Tebbets, 121 N. T. 222; Wait, Fraudulent Conveyance, sec. 300 ; Hoxie v. Price, 31 Mo. 86; Holloway v. Holloway, 103 Mo. 274; Benne v. Schnecko, 100 Mo. 250. (2) The fraudulent transferee of property is a mere trustee for creditors to the extent of the effects transferred to him, and his liability may be established in a garnishment proceeding. Holmes Organ Co. v. Pettit, 34 Mo. App. 536; Lackland v. Garesche, 56 Mo. 267; Joseph v. Voldridge, 43 Mo. App. 333; Weid on Attachment, sec. 327; Waples on Attachment and Garnishment, p. 215; Rubber Mfg. Co. v. Supply Co., 149 Mo. 538; Donlr v. Kinealy, 81 Mo. App'. 646; Baker & Taylor Co. v. Schneider, 85 Mo. App. 412. (3) The transfer of personal property as security for a pre-existing debt does not render the transferee a bona fide purchaser for value received, since the creditor parts with no value, surrendering no right and claims himself in no worse position than before. Dry Goods Co. v. Bank, 81 Mo. App. 283; Watson v. Woody, 56 Mo. App. 145.
   GANTT, J.

— This is a proceeding by garnishment instituted by summoning Nannie M. Bryan as garnishee, on the execution on the judgment rendered in favor of the plaintiff against William S. Bryan, in the circuit court of the city of St. Louis, on the 23d day of March, 1903, for $11,261.75.

Interrogatories were filed by the plaintiff to the garnishee as to whether she was indebted to the defendant, or had any money, property or effects of the defendant ’s in her possession. Garnishee was also specifically asked as to whether she had on or about October 7, 1902, received from the defendant approximately $10,967.40, and if so, under what circumstances and for what purpose. The garnishee answered, denying specifically any indebtedness to the defendant, cr that she had any of his property in her possession. The answer stated that she had, on or about October 7, 1902, received from the defendant the sum of $10,806.53 in cash, in payment of the indebtedness owing to her from the defendant. A denial of the garnishee’s answer was filed, in which plaintiff alleged that on October 7, 1902, defendant was entrusted with certain negotiable promissory notes belonging to plaintiff, which defendant agreed to take up to the National Bank of Commerce, in the city of St. Louis, and have discounted, and to return the proceeds to the N. D. Thompson Publishing Company. That defendant had the notes discounted at said bank and received the proceeds, amounting to $10,967.40, and appropriated the same to bis own use, and that judgment for that amount, together with interest and costs, had been rendered against defendant in favor of plaintiff in the circuit court of the city of St. Louis, to enforce which judgment this garnishment was issued. Plaintiff further alleged that defendant had admitted that he turned over the money to the garnishee and claimed that it was turned over to her in payment of some indebtedness from him to her. It was further alleged that the garnishee had full knowledge that the money thus delivered to her by the defendant was not the property of said William S. Bryan and that he had no title thereto. To this denial, the garnishee filed a reply denying each and every allegation therein contained. On the issues thus framed a trial was had on June 18, 1903, and a verdict was rendered in favor of the plaintiff against the garnishee for $10,800. On motion of the plaintiff the garnishee was ordered to pay the money into court on or before June 22, 1903. Thereupon motions for new trial and in arrest of judgment were filed in due time, which were heard and overruled, and an appeal was granted to this court.

On the trial, over the objection of the garnishee, the plaintiff was permitted to show the facts set out in the principal case of the Chicago Herald Company vs. William S. Bryan, already determined at this term, and in addition thereto, that the said W. S. Bryan, after discounting the notes, took the money which he received for the notes and placed them in a package and took the package and turned it over to Mr. W. N. McConkin. Several days thereafter, the garnishee, Mrs. Bryan, called upon Mr. McConkin and received the package from him, and the money was then counted out and turned over to Mr. McConkin’s firm as a loan; afterward it was returned to the garnishee in cash. There was evidence also on the part of the garnishee, in a deposition taken by the plaintiff, that this money was turned over to her by her husband as a credit for money that he owed her. That at that time he was indebted to her in the sum of $16,000, which was partly evidenced by a note for $3,000 which was offered in evidence, and also by an assignment of certain interest in Kentucky lands to secure a further indebtedness of $5,000 and interest. She testified that the money that she had loaned Mr. Bryan had been inherited by her from her father and mother. That at the time of her mother’s death she inherited a half interest in certain real estate in the city of St. Louis, on Seventh street between Olive and Pine, which was sold for $46,000, of which she received $23,000. That her husband had not paid her anything on this indebtedness, except $560, paid as interest at various times, beginning June first, 1895.

Instructions were given on behalf of the plaintiff, to which the garnishee duly excepted, and instructions were asked by the garnishee, which were refused, to which she saved her exceptions.

I. The appeal in this case presents some exceedingly interesting questions, among others whether a plaintiff by garnishment process can recover of the garnishee his own property or its value, and whether he is not by the statute itself restricted to subjecting the property or the debts of the garnishee to the defendant to the satisfaction of his judgment. Other propositions are also ably argued and presented by learned counsel, but we are confronted at this time with the fact that this court has reversed the judgment in favor of the plaintiff against the defendant without remanding the cause, and that therefore there is no judgment left to support the execution under which the garnishee in this case was summoned and required to answer. Garnishment under our laws is one of the modes pointed out by the statute by which the execution is executed, and is not a new suit. It is an incident or an auxiliary of the judgment and a means of obtaining satisfaction of the same by reaching the defendant’s credit or property.

As the garnishee must make his answer in the court whence the execution issues, it alone has exclusive control over its process. As the judgment upon which this garnishment was-issued has been reversed by this court and the appeal in the garnishment is before us, this court must take notice of its own record, and it thus appears to us that in no event can the garnishee be held, because there is no longer any judgment to sustain the garnishment, it becomes wholly unnecessary to determine the rightfulness of the judgment obtained by the plaintiff against the garnishee. It has been ruled in various cases that a garnishment proceeding cannot be based on a void judgment against a defend: ant. [France v. Evans, 90 Mo. 74.] In Mitchell v. Watson, 9 Fla. 160, it was held that the judgment against a garnishee in a suit commenced by attachment is annulled by the dissolution of the attachment even after plea pleaded, the court saying: “The judgment against the garnishee, growing out of the attachment and being a mere incident of it, must necessarily, fall with the attachment on which it is based. After it has been adjudged that á party has wrongfully and illegally sued out his attachment, it would be inconsistent to say that he shall nevertheless hold on to all the fruits he may have attempted to secure by such wrongful and illegal act.” The law everywhere is, that when a judgment is reversed the defendant in the judgment is entitled to be restored to all that he has lost.

In Withington v. Southworth, 26 Mich. 381, the Supreme Court of Michigan, through Judge Cooley, said: “The writ in this case brought up the proceedings in an ancillary proceeding by garnishment. We think if those were to be reviewed, a separate writ should have been sued out. It is not important, however, as those proceedings must fall to the ground when the judgment in the principal case is set aside.” In Clough v. Buck, 6 Neb. 343, the Supreme Court of Nebraska said: “This process of garnishment is authorized only when there is a judgment, upon which an execution has been issued and returned unsatisfied for want of property whereon to levy and collect the debt, and therefore the whole proceeding must be supported by a judgment in esse. And if after such process has been had, the judgment is reversed, set aside, of vacated, the execution falls with it, and the garnishment becomes wholly dissolved, for there is nothing left to support either the one or the other. ’ ’

In Rowlett v. Lane, 43 Tex. 274, it was ruled that the garnishee’s liability is dependent upon the judgment rendered against the defendant. The reversal of such judgment annuls the judgment against the garnishee in the same proceedings. In Hammett v. Morris, 55 Ga. 644, it was held that a judgment against a garnishee is ancillary to and dependent upon the judgment against the principal debtor, and satisfaction of the principal judgment extinguishes the judgment against the garnishee.

The judgment of the circuit court of St. Louis upon which this garnishment is based having been reversed at this term of this court, there is nothing left to sustain the judgment against the garnishee from which' she has appealed to this court, and taking judicial notice of our own records of such reversal, it must be ruled that the judgment against the garnishee, Mrs.-Bryan, must be reversed, and the garnishee discharged, without any examination into the exceptions saved on the trial of the garnishment.

Judgment reversed and garnishee discharged.

Burgess, P. J., and Fox, J., concur.


author: BRACE, P. J.

text:
    SANDERSON v. PIKE COUNTY, Appellant.
    Division One,
    April 20, 1906.
    1. PUBLIC OFFICER: Compensation. The right of a public officer to compensation for the performance of his official duties is derived from the statutes, and he is entitled to no compensation for such services unless the statutes give it.
    2. COUNTY TREASURER: Compensation: County Court’s Authority. The statutes have vested in the county court the power to fix the compensation of the county treasurer for his general services and for his services in distributing the school moneys of the county, and with this discretion neither the circuit court nor the Supreme Court has any right to interfere.
    3. -: -: -: Compensation: How Established. The county court is a court of record, and its acts and proceedings can only be known by its records. A contract with the county court, to pay the county treasurer a compensation for his services, cannot be shown by parol.
    4. -: -: School Fund. The county treasurer is not entitled to one-half of one per cent on all school moneys distributed by him; he is entitled “to such compensation for his services as the county court may deem advisable” not exceeding that amount. And where the treasurer has been paid a quarterly salary, and after his term expires sues the county for compensation for his services in distributing the school moneys, he cannot recover anything unless he can produce some record of the county court showing that the court deemed it advisable to pay him more money than they did pay him.
    Appeal from Pike Circuit Court.— Eon. David H. Eby, Judge.
    Reversed.

      Elliott W. Major for appellant.
    (1) ' The county court liad the right, which it exercised, to fix the compensation of the respondent for his services as treasurer and his commission for handling and disbursing the school funds, and it was the sole judge of the amount it would allow him and had the right to pay for. all the services in the same warrant. R. S. 1899, sees. 9849 and 6807. (2) The appellant pleads consistent facts in his answer which facts operate both as a payment to and an estoppel upon the part of respondent. Cadematori v. Gauger, 1601 Mo. 352. (3) While the burden is on the party pleading payment and estoppel, yet, when a-final settlement is shown, the law presumes that all matters were included therein. Pichel v. St. Louis Chamber of Commerce, 10 Mo. App. 191; 22 Am. and Eng. Ency. Law (2 Ed.), 607. (4) The county paid respondent $1,400 per year, $300 for quarterly salary and $100 every other quarter, believing and intending, as the record discloses, that it was in full payment of salary and commission for handling school funds; respondent received same knowing that fact, accepted the benefits, remained silent and adopted that basis, and cannot now assert the contrary. He made his quarterly, yearly, term and final settlements on this basis and closed his official business with the court and passed out of office and is estopped in law and in equity from now asserting this claim. 11 Am. and Eng. Ency. Law (2 Ed.), 421; Cornwall v. Ganser, 85 Mo. App. 684; Wonderly v. Christian, 91 Mo. App. 168; State ex rel. v: Branch, 151 Mo. 622; Bank v. Bank, 3 Mo. App. 371; Williams v. Railroad, 153 Mo. 519; Blodgett v. Perry, 97 Mo. 273. (5) Respondent, knowing that warrants issued to him were intended as payment both of his salary and his commissions on the school funds, remained silent and permitted same to be done, and by such conduct is absolutely precluded from maintaining this action. Acton v. Dooley, 74 Mo. 63; Wonderly v. Christian, 91 Mo. App. 168; Taylor and Mason v. Zepp, 14 Mo. 339; Blodgett v. Perry, 97 Mo. 273; State ex rel. v. Branch, 151 Mo. 622; Bigelow on Estoppel, 438, 492 and 493; Acton v. Dooley, 74 Mo. 67; 11 Am. and Eng. Ency. Law (2 Ed.), 433.

      Ball S Sparrow and Dempsey & McGiwi%is for respondent.
    (1) The treasurer’s salary for general services is fixed and paid under the provisions of section 6807, Revised Statutes 1899, while his compensation for disbursing school moneys is fixed and paid under the provisions of section 9849, and depends upon the amount of moneys disbursed. Under section 6807, he settles with the county court, while under the other he settles with the clerk. Pie makes separate bonds (secs. 6767 and 9849) under which duties and liabilities are separate and distinct. Givens v. Daviess County, 107 Mo. 603. (2) None of the characteristics of estoppel are shown. Appellant was not led into a line of conduct prejudicial to its interests. Blodgett v. Perry, 97 Mo. 263; State ex rel. v. Branch, 151 Mo. 639. (3) The county court in making settlements acted in an administrative capacity and such settlements were subject to correction. State ex rel. v. Gideon, 158 Mo. 338.
   BRACE, P. J.

— This is an appeal by the defendant from a judgment of the Pike Circuit Court in favor of the plaintiff for the sum of $942.79.

The plaintiff was treasurer of Pike county for two consecutive terms, beginning January 1,1899, and ending January 1,1903, and during that time disbursed the school moneys of said county under the provisions of section 9849, Revised Statutes 1899, to the amount of $208,562.58, and received from the county the sum of $5,700 for his services. In this action the plaintiff seeks to recover the sum of $942.79, being one-half of one per cent of said sum of $208,562.58, less the sum of $100, credited in the petition on his demand.

The defense was that: “Plaintiff and defendant made regular and periodical settlements, in which the plaintiff was allowed and received the compensation therein awarded him by the county court of Pike county, and accepted same in full settlement of Ms claim for compensation as county treasurer and Ms claim for compensation for the services mentioned in his petition, and that said plaintiff has been fully paid for all services rendered and performed by him as county treasurer and for all services mentioned in his said petition and upon which he bases his suit and that defendant owes plaintiff nothing. Defendant further says that plaintiff is and ought to be estopped from asserting or claiming any additional compensation by reason of the facts hereinbefore set out and pleaded.”

The plaintiff’s contention is that as treasurer he was to receive a salary of $1,400- per annum, and that as such he was entitled in addition thereto to the sum of $1,042.79 for disbursing the.school moneys. The only evidence offered m support of his claim was that of the plaintiff himself. He admits that he was paid $5,700; that he was paid quarterly; that each quarter he was paid the full amount he demanded; but contends that all the payments were on account of his salary as treasurer, and none of them, except one of $100, was on account of his services in disbursing the school moneys. On the other hand, for the defendant it is contended that the plaintiff’s salary as treasurer was only $1,200 per annum, payable $300 quarterly; that every other quarter he was paid $400; that the extra $100 was paid him for his services in handling the school funds, and in this way he was paid $4,800 salary as treasurer and $900 for his services in disbursing the school moneys, and the $5,700 paid him was in full for all his services. In regard to the compensation he was to receive plaintiff testified as follows:

“Q. At what rate were you allowed by the county court as treasurer? What rate per annum? A. There was no rate fixed only under the statute.
“Q. Well, I mean as treasurer? A. I only put in a claim for $1,400 a year.
“Q. That was in pursuance of an understanding between you and the members of the county court? A. I don’t know as there was any understanding, except the bills when they allowed them.
“By the Court: At that rate of $1,400 a year? A. That is what I put in. That is all I asked for.
“Q. You made out your claim at the rate of $1,400 .a year? A. Yes, sir.
“Q. And they were paid? A. Yes, sir. . . .
‘ ‘ Q. How would you make out your claim'for quarterly salary? A. I would put it in as salary as county treasurer, with the exception of that in August, 1899, $300, that was for salary and $100 for school funds.
“Q.. That was in August, 1899, you were paid this $100 on account of your handling the school money? A. Yes, sir.
“ Q. Was that included in your claim, your account you presented and filed there as treasurer, that $100, did you ask for that in your account, or how was it paid? Did you include that in your account? A. Yes, sir; I worded that as to the school funds and salary separately.
‘ ‘ Q. That $100 run up to what date, the way you worded it? A.' What do you mean by that?
“Q. You say you were paid $100 on account of your services for handling the school money. Did that $.100 intend or purport to cover your services up to any particular date? A. I aimed for it to cover it up to the first of July.
“Q. Of the first year of your incumbency of the office? A. Yes, sir.
“Q. Your idea was you ought to have about $200 a year for your services for handling this school money, outside of your regular salary as treasurer? A. No, not just that. I made a rough estimate of it and it was a big job and I made a rough estimate of it and figured for the first half year, right around that point, and after that I saw that would not cover one-half of one per cent. I aimed to make it cover the one-half of one per cent.
“Q. You also intended this one hundred dollars you received to cover your services as custodian of the school money up to July first of that year, 1899? A. Yes, sir.
“Q. And you accepted that one hundred dollars with that idea — it settled for your services as custodian of the school money up to July first, 1899 ? A. Yes, sir; I think it just about covered one-half of one per cent up to that time. . . .
“Q. You understood all the time of your incumbency of the office.that your salary as county treasurer was fixed at $1,400 — you understood that, didn’t you? A; I thought I would get the $1,400 and commission on two of the things — on the school and the township funds. ’ ’

■ The claim for quarterly salary presented in August, 1899, to which the plaintiff refers, was as follows:

“Bowling Green, August first, 1899.
“Pike County, Missouri, Dr. to R. B. Sanderson on salary $300. To R. B. Sanderson for stamps, and express and cards, $8.15. To R. B. Sanderson one-half year’s school salary, $100 — total, $408.15.”

On this claim he was paid $400 for Ms services as therein demanded. The next quarter he was paid $300, the next after that $400, and thereafter, thus alternating, he was paid, to the end of his last term. After his last term had expired and he had made final settlement of his account, he then for the first time made a demand for additional pay for disbursing the school moneys, which the county court refusing, this suit was brought.

The most that can be said for the plaintiff’s evidence is that while it may have tended to prove that it was his expectation that he would be paid $1,400 per annum salary and one-half of one per cent on the amount of school moneys disbursed by him, it did not tend to prove that such was the understanding of the county court. But in the view we take of this case, the evidence need not be dwelt upon.

The case was tried before the court, who declared the law of the case as follows:

“The court sitting as a jury declares the law to be that if the court believes from the evidence in the cause that the different payments made by the defendant county by and through its county court to the plaintiff as shown in evidence did not embrace and include compensation for his services rendered in disbursing the school moneys, then the plaintiff is entitled to recover a reasonable amount therefor, not exceeding one-half of one per cent of the amount disbursed.”

By section 6807, article 4, chapter 97, Revised Statutes 1899, entitled “County Treasurers and County Warrants,” it is provided that “unless otherwise provided by law, the county court shall allow the treasurer for his services under this article such compensation as may be deemed just and reasonable, and cause warrants to be drawn therefor,” and by section 9849, article 1, chapter 154, Revised Statutes 1899, entitled “Schools,” it is provided that “the county treasurer shall be-allowed such compensation for his services as the county court may deem advisable, not to exceed one-half of one per cent of all school moneys disbursed by him, and to be paid out of the county treasury.”

It will thus be seen that the Legislature has vested in the county court the power to fix the compensation of the treasurer for his general services and for his services in disbursing the school moneys of the county. With this discretion neither this court nor the circuit court has any right to interfere. The county court is a court of record, and its acts and proceedings can only be known by its record. A contract with such court cannot be established by parol evidence. [Maupin v. Franklin Co., 67 Mo. 327; Dennison v. County of St. Louis, 33 Mo. 168.] No record of the county court was produced on the trial of this cause fixing the treasurer’s compensation under either of the foregoing sections of the statute. It is well-settled law in this State that the right to compensation for the discharge of official duties is purely a creature of the statute, and that the statute which is claimed to confer that right must be strictly construed. The right of a public officer to compensation is derived from the statute, and he is entitled to none for services he may perform as such officer, unless the statute gives it. [State ex rel. v. Adams, 172 Mo. 1-7; Jackson County v. Stone, 168 Mo. 577; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Brown, 146 Mo. 401; State ex rel. v. Wofford, 116 Mo. 220; Givens v. Daviess Co., 107 Mo. 603; Williams v. Chariton Co., 85 Mo. 645; Gammon v. Lafayette Co., 76 Mo. 675.]

Such compensation is not the creature of contract nor dependent upon the fact, or value of services actually rendered (State ex rel. v. Walbridge, supra, and authorities cited on pp. 203 and 204), and cannot be recovered upon quantum meruit. [Wolcott v. Lawrence Co., 26 Mo. 272, and cases supra.]

This suit was brought upon the theory that under the provisions of section 9849, supra, the plaintiff was entitled to “one-half of one per cent of all school moneys disbursed by him,” when, in fact, he was only entitled “to such compensation for his services as the county court may deem advisable,” not exceeding that amount.

There was no legal evidence tending to prove that the county court deemed it advisable to pay him for such services any more than they did in fact pay him.

The circuit court by its finding and judgment charged the county for the value of his services upon an implied contract and upon the exceedingly doubtful weight of the parol evidence, when such a contract, either express or implied, could not be established by such, evidence, as abundantly appears by the cases cited.

The judgment of the circuit court has no legal evidence to support it, and is therefore reversed.

All concur.