Askew v. La Cygne Exch. Bank

• Citation: 83 Mo. 366
• Parties: ASKEW et al., Appellants, v. THE LA CYGNE EXCHANGE BANK; MOORE, Assignee, Interpleader.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

83 Mo. 366

ASKEW et al., Appellants,

v.THE LA CYGNE EXCHANGE BANK; MOORE, Assignee, Interpleader.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jacksor Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Karnes & Ess for appellants.

The assignment laws of the state of Kansas ought not to be given extra-territorial force. It is only out of considerations of comity that foreign assignments will be respected here. Where the rights of creditors have intervened as by attachment they should be entitled to priority as against the foreign assignee. Rorer on Inter-State Law, pp. 138, 9; 2 Kent's Com. p. 406; Einer v. Beste, 32 Mo. 240; Thurston v. Rosenfield, 42 Mo. 474; Bryan v. Brisden, 26 Mo. 423; Greene v. Van Buskirk, 5 Wall. 307; Johnson v. Parker, 4 Bush (Ky.) 149.

Gage, Ladd & Small for respondent.

It is believed that the precise question upon which this case turns has not been passed upon by this court, but in other states the exact question has been settled in favor of the respondent. Bank v. Gettinger, 3 W. Va. 309; Greggs v. Sloan, 76 Va. 497; Miller v. Kernaghan, 56 Ga. 155; Princeton Manfg. Co. v. White, 68 Ga. 96; Walters v. Whitlock, 9 Fla. 86; Johnson v. Sharp, 31 Ohio St. 619; Hanford v. Paine, 32 Vt. 442; Means v. Hapgood, 19 Pick. 105; May v. Wannemacher, 111 Mass. 202; Speed v. May, 17 Pa. St. 91; Law v. Mills, 18 Pa. St. 185; Ackerman v. Cross, 40 Barb. 465; Same Case, 54 N. Y. 29. The decisions of the United States courts are in the same line. Caskie v. Webster, 2 Wallace Jr. 131; J. M. Atherton Co. v. Ives, 20 Fed. Rep. 894. In the case last cited Judge Barr comments upon the case in 4 Bush cited by the appellants. Burrill on Assignments (3d Ed.) chap. 23. It is submitted that in this case, where by the assignment no injustice was done the appellants, but where they stand upon the same footing with all the other creditors of the assignor, the overwhelming weight of authority is in support of interpleader's title and that the judgment should be affirmed.

EWING, C.

The appellants, on the 27th of February, 1880, brought this suit against the La Cygne Exchange Bank, a banking corporation created under the laws of the state of Kansas, and theretofore doing business as such at La Cygne in that state. The suit was by attachment, and notice of garnishment was on the same day served on the Merchant's National Bank of Kansas City, as garnishee. In due time the garnishee answered, stating that at the time the notice was served, it had in its possession the notes of several parties which had been placed in its hands by the Kansas bank as collateral security for a debt owing by the latter to the garnishee.

After this answer was filed, the respondent, Moore, as assignee of the Kansas bank, filed his interplea, claiming to be the owner of the notes, subject only to the lien of the pledge mentioned in the garnishee's answer. The appellants answered to the interplea denying the claim set up. The garnishee's answer was taken as true by all the parties to the suit, and the contest between the appellants and respondent was over the surplus which it was supposed would remain in the hands of the garnishee after the payment of the debt due to it.

The issue between the interpleader and appellants was tried by the court without a jury upon the facts as agreed upon by the parties, and which were substantially as follows:

The La Cygne Exchange Bank was a banking corporation organized under the laws of the state of Kansas, and had been doing business as such at La Cygne in the county of Miami, in said state, since the year 1876. At noon on February 25, 1880, the bank made an assignment of all its property and effects for the benefit of all its creditors. This assignment was made in conformity with the laws of the state of Kansas upon that subject. Immediately upon the making of the assignment the assignee took possession of the property and effects. The interpleader is the assignee, and undertook the execution of his trust, and that all the proceedings of the assignee subsequent to the making of the assignment had been in strict conformity to the laws of the state of Kansas; that the property attached in the garnishee's hands had been pledged to the garnishee bank by the debtor bank long before the assignment, as collateral security for certain debts due by the latter to the former; that the appellants were residents and citizens of Missouri; the garnishee bank was located in Missouri and the debt payable in Missouri. The laws of the state of Kansas governing assignments for the benefit of creditors were made part of the case, and were in all material matters substantially the same as those of Missouri upon the same subject.

The court refused to declare the law to be that upon the pleadings and evidence the interpleader could not recover, and made its finding for the assignee (the interpleader), and rendered judgment accordingly. The attaching creditors took this appeal.

It will be seen that the precise legal proposition we have to decide is this: Does a voluntary assignment, for the benefit of all the creditors of the assignor made in the state of Kansas, of the debt due from a citizen and resident of this state, to the assignor, a resident of Kansas, pass the debt to the assignee at the time of the assignment, so as to defeat a subsequent attaching creditor of the assignor in this state, whose attachment is issued and the debtor of the assignor garnished after the making of the assignment?

There has been much discussion of questions similar to this, but it will neither be necessary nor profitable to undertake a thorough review of the conflicting adjudications. The case of Bryan v. Brisbin, 26 Mo. 423, is similar to the one at bar, with the important exception that in that case the deed of assignment was in conflict with the laws of Missouri, and could not have been enforced here, while it is admitted that the assignment in the case at bar would be valid in Missouri. In Einer v. Beste, 32 Mo. 240, the plaintiff and defendant were both residents of Louisiana. The defendant was insolvent, and had instituted proceedings for discharge under the insolvent laws of Louisiana. The plaintiff, by a suit of attachment in this state, sought to obtain priority of the other creditors. After a somewhat exhaustive review of the authorities, Judge Ray held that the assignment was good as against this attaching creditor. The same question was similarly decided by this court in Thurston v. Rosenfield, 42 Mo. 474.

In Ackerman v. Cross, 54 N. Y. 29, it is held that a voluntary assignment by a debtor...