Brucker v. Georgia Casualty Co.

• Decision Date: 24 March 1926
• Docket Number: 7418.,No. 7426,7426
• Citation: 14 F.2d 688
• Court: U.S. District Court — Eastern District of Missouri
• Parties: BRUCKER v. GEORGIA CASUALTY CO. RUSSELL v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, ZURICH, SWITZERLAND.

14 F.2d 688 (1926)

BRUCKER v. GEORGIA CASUALTY CO.

RUSSELL v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, ZURICH, SWITZERLAND.

Nos. 7426, 7418.

District Court, E. D. Missouri. E. D.

March 24, 1926.

Joseph Goodman and James J. O'Donohoe, both of St. Louis, Mo., for plaintiff Brucker.

James J. O'Donohoe, Wilbur C. Schwartz, and N. Murray Edwards, all of St. Louis, Mo., for plaintiff Russell.

Holland, Rutledge & Lashly, of St. Louis, Mo., for defendant Georgia Casualty Co.

M. L. Lichtenstadt and Charles E. Morrow, both of St. Louis, Mo., for defendant Zurich General Accident & Liability Ins. Co.

DAVIS, District Judge.

The following statement is applicable to each of the above-entitled causes:

The plaintiff recovered a judgment for damages for personal injuries as a result of an automobile accident. Execution was issued, and the defendant insurance company summoned as garnishee, on the theory that it had issued a policy of liability insurance to the defendant in the damage suit, covering the automobile involved in the case.

The plaintiff has in one of the cases filed his denial of the garnishee's answer and alleges the issuance of the policy and asserts a liability thereunder. In the other case the denial has not been filed, but it is conceded that it will be of the same nature.

The garnishee caused the case to be removed to this court on the ground of diversity of citizenship as between the plaintiff and the garnishee. The issue now presented arises on plaintiff's motion to remand.

I. The garnishee views the case as an independent action, to all present intents and purposes, within the jurisdiction of this court. To so regard the case, it is necessary to realign the parties, making the defendants in the original action plaintiffs now, as was done in Baker v. Duwamish Mill Co. (C. C.) 149 F. 612, or to disregard them, and treat them as not being parties to the present action.

The plaintiff, on the other hand, takes the position that the garnishment action is merely supplemental to, and a continuance of, the original suit, which was not removable; hence the issue now arising does not make it removable.

II. A garnishment proceeding, provided by the statutes of Missouri, as construed by the courts of the state, is not an independent suit, but is supplemental to the main action and provides one of the means of securing a satisfaction of the judgment. This is the interpretation that the courts of Missouri have placed upon the statute. In Chicago Herald Co. v. Bryan, 195 Mo. 590, 92 S. W. 906, 6 Ann. Cas. 751, it is said that "garnishment under our laws is one of the modes pointed out by the statute by which the execution is executed and is not a new suit. It is an incident or an auxiliary of the judgment and a means of obtaining satisfaction of the same by reaching the defendant's credit or property. As the garnishee must make his answer in the court whence the execution issues, it alone has exclusive control over its process." In Diebold Safe & Lock Co. v. Dunnegan, 135 Mo. App. 135, 115 S. W. 1051, the court held that a change of venue was not allowable in a garnishment proceeding, and that the issue raised in such a proceeding must be heard in the court where the judgment was rendered. All of the Missouri cases seem to be to the same effect. The construction thus given the statutes is not to be ignored in this court.

That a garnishment proceeding is not an independent action but is auxiliary to the original suit may be seen from other considerations. In one of the cases at bar, for instance, the original suit is now pending on appeal in the Supreme Court of Missouri. If on appeal the judgment should be reversed, this fact would determine the issue in the garnishment case that is now in this court. There would be nothing left here to determine if it should be held that the judgment in the original case was without foundation.

This appeal in the main suit was taken without the giving of a bond. Now that the case is pending in the Supreme Court, suppose a bond should be filed and supersedeas granted. How would we then proceed in this case? It is quite apparent that such a situation ought to stay the further progress of this garnishment proceeding.

The same conclusion must be reached when we consider the character of any judgment that the court might render in the garnishment case. If the issue should be determined in favor of the plaintiff and against the defendant, garnishee, the court would only be authorized to enter a judgment against the garnishee to the extent and in the amount of the judgment in the original case, provided it should be found that the garnishee had more money in its hands belonging to the judgment debtors than the amount of the debt. Section 1862, R. S. Mo. 1919. That situation could not arise in this case, but it might arise in a case of this nature.

Suppose we turn to the procedure in such cases. Section 1852, R. S. Mo. 1919, provides that,

"Whenever any property, effects, money or debts, belonging or owing to the defendant, shall be confessed, or found by the court or jury, to...