J. W. Jenkins Sons Music Company v. Sage

• Decision Date: 02 November 1914
• Parties: J. W. JENKINS SONS MUSIC COMPANY, Appellant, v. M. V. SAGE, Respondent; THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Garnishee
• Court: Kansas Court of Appeals

171 S.W. 672

184 Mo.App. 340

J. W. JENKINS SONS MUSIC COMPANY, Appellant, v. M. V. SAGE, Respondent; THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Garnishee

Court of Appeals of Missouri, Kansas City

November 2, 1914

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

Judgment affirmed.

Stubenrauch & Hartz for appellant.

(1) It filed its bond and affidavit for appeal after judgment which was a further entry of appearance and its motion in the circuit court made no claim that the justice had no jurisdiction over the person of the garnishee. Trimble v Elkin, 88 Mo.App. 229; Meyer v. Insurance Company, 184 Mo. 481; Sections 7568, 7579, R. S. 1909. (2) Since the defendant could have maintained an action before the justice of the peace in question for the recovery of the debt due him from garnishee, plaintiff can maintain an attachment suit against the defendant in the same court and subject defendant's claim to the payment of plaintiff's debt. Hardware & Manufacturing Company v Lang & Company, 127 Mo. 242; Howland v Railroad, 134 Mo. 474; Harris v. Balk, 198 U.S. 215; Railroad v. Sturm, 174 U.S. 710.

Sebree, Conrad & Wendorff and Paul E. Walker for respondent.

(1) The appeal should be dismissed. Silberberg v. Gitenstein, 168 Mo.App. 399. (2) The justice had no jurisdiction of the cause. Laws of Missouri 1911, p. 141, secs. 1 and 2; White v. Railroad, 230 Mo. 287. (3) The circuit court acquired no jurisdiction. Beth v. Railroad, 136 Mo.App. 234; Union Transit Co. v. Merritt, 158 Mo.App. 648, 657; Haag v. Ward, 89 Mo.App. 186. (4) No notice of appeal was necessary. Haag v. Ward, 89 Mo.App. 186.

OPINION

ELLISON, P. J.

--This action was begun before a justice of the peace at the city of Independence and is on a contract for the purchase of a piano whereby a balance of $ 63 is claimed. No service was had upon the defendant but the railway company was summoned as garnishee on the claim that it owed defendant certain money. The company answered admitting it owed defendant $ 84.

Judgment was rendered against the company as garnishee and it appealed to the circuit court. In the latter court plaintiff moved to dismiss the appeal for the reason that no notice of appeal was given; and the garnishee moved to dismiss the case, or strike it from the docket, on the ground that the justice of the peace and consequently the circuit court had no jurisdiction of the case. The trial court overruled the motion to dismiss the appeal and sustained the motion denying jurisdiction. There was no service on defendant or appearance by him. Plaintiff's action and garnishment is founded on the contract for the piano which was filed with the justice as plaintiff's statement of his cause of action. It recites that the contract was made in Kansas and that it was to be governed by the laws of that State. It also provided that installment payments on the contract were due and payable at plaintiff's place of business in Kansas City, Missouri. These facts appeared upon the face of the proceedings before the justice and the question is, had he jurisdiction under the provisions of the following statute (Laws 1911, p. 141). "Section 1. No wages shall be attached or garnished before personal service is had or obtained upon the defendant, unless the suit be brought in the county where the defendant resides, or in the county where the debt is contracted and the cause of action arose or accrued, and in cities ever one hundred thousand inhabitants in the 'city' where the defendant resides or the debt is contracted and the cause of action accrued: Provided; the petition or statement filed in the cause and the writ or summons of attachment or garnishment shall affirmatively show the place where the defendant resides and the place where the debt is contracted and the cause of action arose."

"Section 2. Wages earned out of this State, and payable out of this State, shall be exempt from attachment or garnishment in all cases where the cause of action arose or accrued out of this...