Federal Truck Co. v. Mayer , 216 Mo. App. 443 ( 1925 )

ON MOTION FOR REHEARING. Learned counsel for respondent, in a motion for rehearing filed, insists that this case should not be reversed outright, but should be reversed and remanded so that the officer who served the summons may be permitted to make a return in accordance with the facts. This we would be inclined to do, but we find another fatal obstacle in the way of this procedure because of the fact that plaintiff's denial of the garnishee's answer in the justice court was merely a general denial and nothing more, as heretofore stated. Then, in the circuit court, plaintiff filed an amended denial to the garnishee's answer. This was done over defendant's objections, and the matter is brought here by a term bill of exceptions. Plaintiff's denial of the garnishee's answer is the first pleading, and should state the grounds upon which a recovery is sought. The general denial as filed in the justice court amounted to no pleading at all, and therefore there was nothing to amend in the circuit court. It was error to permit such an amendment in the circuit court because there was nothing to amend, and therefore we could but reach the same result heretofore reached, namely, that the case should be reversed, and the garnishee discharged. [Rees v. Peck-King Mortgage Co., 206 Mo. App. 690,230 S.W. 666.]

The motion for rehearing is accordingly overruled. Daues,P.J., and Becker, J., concur.