delivered a concurring opinion.
While concurring in the result reached in the opinion, I deem it proper to state the reasons whicjh determine my action. The sole contention of the plaintiffs which is entitled to serious consideration is the one that the garnishees’ answer was insufficient, and that they were entitled to judgment upon the answer. This question does not properly arise upon the record. If the garnishees ’ answer was insufficient the plaintiffs should have excepted to it under the provisions of section 2532 of the Revised Statutes. This they failed to do, but instead thereof filed a denial of the facts set out in the garnishees’ answer.
The issues in these cases are made up, not by the interrogatories and answers, but by the denial and reply. The statute (sec. 2533) provides: “In all cases where the answer of the garnishee is denied the denial shall' contain specially the grounds upon which a recovery is sought against the garnishee, and the garnishee shall be entitled to a reply, and the issue or issues made up on the denial and reply shall be the sole issue or issues tried, and the issue or issues shall be tried as ordinary issues between plaintiff and defendant.”
Now in the case at bar the denial did not state any grounds on which a recovery is sought, as the statute requires, but simply denies certain statements contained in the garnishees ’ answer. It is apparent, therefore, that instead of the plaintiff being entitled to a judgment upon the pleadings, the garnishee would have been entitled to it on proper motion, for the reason, among *346others, that the first pleading on part of plaintiff essential to raise an issue is missing and fails to state any grounds upon which a recovery is sought against the garnishee.
Beyond this, however, the plaintiffs’ argument is fallacious in another respect. It assumes that the question whether the funds represented by the judgment were trust funds, and as such not the subject of garnishment, could not be litigated in this proceeding, because being a garnishment on execution, the statute provides for no interpleas on part of the beneficiaries. We see no reason why the question could not be determined in this proceeding if the parties submitted proper issues to the court for its determination. In McKittrick v. Clemens, 52 Mo. 163, where the garnishees defended on similar grounds and obtained judgment in their favor, the Supreme Court held that the court under the pleadings had the right to pronounce upon the defence in absence of the claimant.
It is evident, therefore, that the court committed no error in either view of the case. Either there was no proper issue raised by the denial and reply, and then the garnishee was entitled to judgment, or such issue was raised and then its determination by the court upon substantial evidence in favor of the garnishee cannot be assigned for error.