McDaniel v. Bryan

1. FRAUDULENT CONVgYANCES: Garnishment. A'fraudulent transfer of a debtor’s property with the purpose of defrauding creditors may be attacked in a garnishment proceeding. 2. TRIAL PRACTICE: Technicality: Merits: Discretion of Court: New Trial. A mere technicality will frequently compel a decision without reference to the merits; however, the trial court upon seeing an injustice has resulted, has authority to remedy such injustice by granting a new trial.

'Appeal from Yernon Circuit Court. — Hon. O. G. Burton, Special Judge. (1) The denial of the garnishee’s answer must contain specifically the grounds upon which a recovery is sought against the’ garnishee. R. S. 1899, sec. 3451. (2) When a pleading is amended by the filing of a new pleading, the amended pleading supersedes the former one, and the party thereby abandons the original pleading and the matters therein alleged. Ticlmor v. Yoorhies, 46 Mo. 110; Rand v. Grubbs, 26 Mo. App. 595. (3) The amended denial contains no allegation of fraudulent conveyance of the real estate therein described, nor was any evidence introduced or offered at the trial which tended in the remotest degree to show fraudulent conveyance of said real estate. Where fraud is charged the fact’s constituting the fraud must be alleged and proved. 9 Am. & Eng. Enc. PI. and Pr., p. 684; Bliss on Code Pleading (2 Ed.), sec. 211; Bank v. Rohrer, 138 Mr. 369. (1) There being nothing in the bill of exceptions showing either the motion to strike out respondents denial or the court’s action thereon, the further action of the court in reference thereto, embodied in its order setting aside the nonsuit, is presumed to be correct. Smith v. Kansas City, 128 Mo. 27; Bolton v. Railway, 172 Mr. 102. (2) If the money in the hands of the garnishee, was the proceeds of the sale of a tract of land, which Bryan, the execution defendant, had fraudulently conveyed to his wife, then such money was properly the subject of garnishment, and the court committed error, in excluding the testimony, by which respondent offered to show such fraudulent conveyance. Organ Co. v. Pettitt, 34 Mo. App. 539; Epstein v. Clothing Co., 67 Mo. App. 221; Dunlap v. Mitchell, 80 Mo. App. 393; Hurley v. Taylor, 78 Mo. 238; Landes v. Ziehr, 150 Mo. 403; Hungerford v. Greengard, 95 Mo. App. 653. (3) Respondent alleged and sought to show that the conveyance of the land by Bryan, the execution defendant, to his wife, Maggie Bryan, was made for the express purpose of hindering, delaying and defrauding respondent! R. S. 1899, section 3398; Hurley v. Taylor, 78 Mr. 238; Lander v. Ziehr, 150 Mo. 403; Hoffman v. Nolte, 127 Mo. 120; Dunlap v. Mitchell, 80 Mo. App. 393; Organ Co. v. Pettitt, 34 Mo. App. 539. (4) If the trial court’s action in setting aside the nonsuit can be sustained on any ground assigned in the motion therefor, then such action should he affirmed, and the court is not confined to the assignment or errors set forth in the motion but may in the furtherance of justice grant a new trial or set aside a nonsuit. Emmons y. Quade, 176 Mo. 28; Hewitt y. Steele, 118 Mo. 463; Bank v. Wood, 124 Mo. 72; Smith y. Sedalia, 152 Mo. 283; Gray v. Railway, 54 Mo. App. 666; Roman v. Trading Co., 87 Mo. App. 190; Fidelity & Deposit Co. y. Col-yin & Jackson, 83 Mo. App. 205; Scott y. Smith, 133 Mo. 619.