Axman v. Dueker

• Decision Date: 10 January 1891
• Citation: 45 Kan. 179,25 P. 582
• Parties: R. AXMAN v. WILLIAM J. DUEKER et al
• Court: Kansas Supreme Court

25 P. 582

45 Kan. 179

R. AXMAN v. WILLIAM J. DUEKER et al

Supreme Court of Kansas

January 10, 1891

Error from Geary District Court.

THE opinion states the facts.

Judgment affirmed.

J. R McClure, for plaintiff in error.

Thomas Dever, J. V. Humphrey, and David Overmyer, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

On the 12th day of May, 1887, C. F. Ziegler commenced an action in the district court of Davis (now Greary) county, against L. C. Pfaffenberger, who was a non-resident of the state, and caused an order of attachment to issue. Service was made upon the defendant by publication. The affidavit for the attachment stated that the defendant was a non-resident and had property in Davis county, and that one William J. Dueker, of said county, had moneys and credits and effects in his hands and under his control and was indebted to the defendant. A copy of the order of attachment was delivered to Ducker. On the 19th day of September, 1887, Pfaffenberger entered a special appearance in the district court, and made a motion to dismiss the action commenced by Ziegler and to set aside the service by publication, the order of attachment and garnishee notice, for the following reasons:

"1. The publication failed to show that service of summons could not be made.

"2. The return of the sheriff to the order of attachment did not show that any property had been attached or garnished.

"3. No legal notice of attachment or garnishment proceedings had been made, as required by law."

Upon this motion, the court held that there was sufficient in the record to compel Dueker to answer, as garnishee, touching his indebtedness to Pfaffenberger ; to which ruling the defendant excepted. The garnishee answered, and was ordered to retain the money in his hands, until the further order of the court.

On the 11th day of January, 1888, the plaintiff, R. Axman, as the assignee of Pfaffenberger, commenced an action against Dueker, the garnishee, to recover the amount due upon a promissory note executed by Dueker to Pfaffenberger. Upon the application of the defendant, Ziegler was made a defendant, and his interplea set out the attachment proceedings and he claimed a lien upon the money due from the defendant by virtue of such proceedings. The court below found that Ziegler had a lien upon the money sued for in this action, to the amount of $ 565.83, and his costs, taxed at $ 38.05 under the attachment and garnishment proceedings in the case of Ziegler v. Pfaffenberger, and awarded judgment for the plaintiff for the balance due on the note. To this judgment the plaintiff in error excepted and brings the case here for review.

The claim is made that before judgment could have been entered there must have been a finding by the court in the case of Ziegler v. Pfaffenberger, that complete jurisdiction had been acquired, both over the person and the subject-matter of the action, in the manner authorized by law, and that where a garnishee pays a judgment against himself, based upon a judgment...