Kraft v. McBoyd

• Decision Date: 19 November 1888
• Parties: HERBERT KRAFT, Plaintiff in Error, v. JUDSON MCBOYD, Defendant in Error.
• Court: Kansas Court of Appeals

32 Mo.App. 399

HERBERT KRAFT, Plaintiff in Error, v. JUDSON MCBOYD, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Error to Morgan Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED AND REMANDED.

Statement of case by the court.

Peter Louis and Herman Hinken, on the second day of June, 1883 executed their promissory note to one Ira Durand for three hundred dollars. On the sixth day of June, 1883, Judson McBoyd, the defendant herein, instituted a suit by attachment against said Ira Durand, and summoned as garnishees, the makers of the note. Durand appeared and answered in the attachment suit. Upon a trial there was a judgment for the plaintiff for the amount sued for. The makers of the note, in answer to the interrogatories in the garnishment, admitted that they owed the note, but said that they did not know whether it was still held by the defendant in the attachment. The court ordered Durand to bring the note into court. Before the garnishment proceedings were disposed of, Kraft, the plaintiff in error, instituted suit in the circuit court of Morgan county against the Hinkens upon the said note. They answered setting up the garnishment and expressing a desire to pay the money to whomever should be found entitled to it but asking that the court protect them by seeing that they paid to the proper party. In this suit of Kraft vs. Hinkens, an order was entered, acceptable to all parties that Hinken pay the money into court and that Kraft and McBoyd interplead for it. No one took any exceptions to this method of settling the matter. Kraft took the initiative and filed a petition, claiming that the note was assigned to him before maturity and that he was entitled to the money, which the Hinkens, in the meantime, had deposited in court. McBoyd answered this petition denying the validity or good faith of the assignment, and claiming that the debt was subject to the attachment against Durand. Kraft replied. There was no objection to the mode of procedure, and all parties treated it as a contest to settle the question as to whether the debt due from the Hinkens was subject to the garnishment proceedings or whether the amount was due Kraft. This question was, by consent, tried by the court. There was evidence on the part of Kraft, tending to show that he bought the note in good faith, and there was evidence and circumstances tending to show that the alleged transfer was fraudulent.

A. W. Anthony, for the plaintiff in error.

(1) It does not appear that McBoyd, in the attachment proceedings, obtained judgment against Durand before the money in court was ordered to be paid to him. R. S. sec. 2531. (2) The order to Durand to deliver the note in court, he being a resident of the state of California, was void. R. S. sec. 2542. (3) Kraft having purchased the note before due, without notice, and in good faith, in the state of California, cannot be affected by garnishment proceedings in this state, or any where else. Bennett v. Torlina, 56 Mo. 309; Hamilton v. Marks, 63 Mo. 167; Shirts v. Overjohn, 60 Mo. 305; Merrick v. Philips, 58 Mo. 436; Grelle v. Loxon, 7 Mo.App. 97. The judgment should be reversed.

B. R. Richardson and Draffen & Williams, for the defendant in error.

(1) McBoyd, on the nineteenth of October, 1883, obtained judgment in the attachment suit against Durand. Even if this judgment did not appear in evidence, the court would presume that the proceedings of the circuit court in that case were regular. If no judgment was rendered, it devolved upon plaintiff in error to show it. The proceedings of courts of general jurisdiction are presumed to be regular. State v Brown, 75 Mo. 317; Allen v. Smith, 56 Mo. 28; Lackland v. Stevenson, 54 Mo. 108; Kennedy v. McNichols, 29 Mo.App. 11. (2) No objection was made or exceptions taken by the...