Carter v. Flynn et al.
| Decision Date | 10 January 1938 |
| Docket Number | No. 18750.,18750. |
| Citation | 112 S.W.2d 364 |
| Court | Missouri Court of Appeals |
| Parties | WILLIAM N. CARTER, RESPONDENT, v. J. FRANK FLYNN ET AL., APPELLANTS. |
Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.
REVERSED AND REMANDED (with directions).
Milligan & Hudson and John W. Hudson for respondent.
Sutton R. Layton, John M.P. Miller and Maurice J. O'Sullivan for appellants.
This cause originated in the Circuit Court of Jackson County. The petition is in the nature of a bill in equity for the purpose of procuring an injunction against a garnishment under execution issued on a judgment rendered by J. Frank Flynn, a justice of the peace of Kaw township, Jackson County, Missouri, in a cause in which Harry Bock was the plaintiff and Arthur E. Cook and W.N. Carter were the defendants, in favor of Bock and against Cook and Carter for $182.04 and for costs, and for the purpose of having such judgment declared void and stricken from the records of the justice.
The cause herein was tried upon an amended petition. Such petition in substance alleges that the defendant J. Frank Flynn, a justice of the peace of Kaw township, Jackson County, Missouri, rendered judgment on December 19, 1935, against the plaintiff and one Cook in favor of Harry Bock, defendant; that the summons in said cause was issued by said justice without any statement of the plaintiff's cause of action therein having at such time been filed by such plaintiff with him; that such judgment was rendered without the service of process on Carter (a defendant therein); that an execution had been issued on such judgment; and that the defendant Kennedy, who was constable of the township, where such judgment was rendered, had, under such execution, attached the money and property of the plaintiff in the hands of the defendant H.D. Lee Mercantile Company or owing by such defendant to the plaintiff and summoned such defendant as garnishee to appear before said justice and answer interrogatories touching its indebtedness to and money and property in its hands belonging to Carter, the defendant therein and the plaintiff herein; that interrogatories had been thereafter filed, to which the defendant H.D. Lee Mercantile Company as garnishee had made answer that it owed Carter salary to and including February 3, 1936, in the sum of $246.63.
The amended petition alleges that the judgment of the justice was void and, likewise, the execution and garnishment and seizure of the plaintiff's salary thereunder. It further alleges that the plaintiff was not indebted to Bock on the account sued upon before the justice; that he has no adequate remedy at law; and that, unless said defendants be restrained from collecting or paying into said justice of the peace or his court the money disclosed by the garnishee's answer to be due the plaintiff, he will suffer irreparable loss.
The prayer of the amended petition is, in substance, as follows: Wherefore the plaintiff prays that the defendants J. Frank Flynn. William P. Kennedy, and Harry Bock be restrained and enjoined from attempting to enforce the execution growing out of the alleged judgment of said justice against the plaintiff; that the defendant H.D. Lee Mercantile Company be enjoined and restrained from paying the funds in its hands as garnishee into court; and that, upon final determination of the cause, the court declare said alleged judgment of said justice to be null and void and order it stricken from the record.
Upon the filing of the amended petition duly verified, a restraining order was issued; and the defendants were required to appear in court on February 24, 1936, to show cause why an injunction should not be issued against them as prayed for in the petition.
The defendants Flynn, Kennedy, and Bock filed joint and separate answer by which, after making admissions of certain allegations in the amended petition, they further tendered a general denial of all of the allegations of the petition. By said answer, they further challenged the amended petition as failing to state facts sufficient to constitute a cause of action in equity in favor of the plaintiff against them and set up that, under the facts alleged, the plaintiff was not entitled to the relief prayed for or to any other relief.
Thereafter, on the same date, the said defendants Flynn, Kennedy, and Bock filed their joint and separate motion to dissolve the restraining order because, among other things, the amended petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants and because said restraining order had been improvidently issued.
Thereafter, on April 12, 1936, the cause came on for hearing; and, upon such hearing, judgment was rendered in favor of the plaintiff, overruling the motion to dissolve the restraining order and making such temporary restraining order permanent and permanently enjoining the defendants Flynn, Kennedy, and Bock from enforcing, levying, or issuing execution on said judgment and permanently enjoining the defendant H.D. Lee Mercantile Company from paying any money owing by it to Carter or other money or property in its possession belonging to Carter into the justice court by reason of such judgment of the justice and the garnishment under execution thereunder.
As the basis for its order and judgment, the trial court found that no statement was ever filed in the justice court of the defendant Flynn until December 19, 1935, and that, on such date, the judgment complained of was rendered against the said Carter upon process that had been issued before the institution of the suit wherein it was rendered and before the filing of a statement of his cause of action by the plaintiff therein with said justice, by reason of which such judgment was void. As a further basis for its order and judgment, the trial court found that no service for process or summons was ever had on Carter in said cause; that Carter had a meritorious defense to said cause of action asserted by the defendant Bock before said justice; that said justice never had jurisdiction of Carter personally; and that the said judgment rendered by the said justice was null, void, and of no effect and was a constructive fraud upon the rights of the plaintiff. The trial court, by its judgment, further ordered that the said judgment so rendered by the said justice against Carter on December 19, 1935, be set aside and stricken from the record of said justice of the peace. From such judgment, the defendants, after unsuccessful motions for a new trial and in arrest of judgment, prosecute this appeal.
From the evidence in the record, it sufficiently appears that the plaintiff in this case is the defendant W.N. Carter in the cause in judgment before the justice; that the defendants Bock, Flynn, and Kennedy are respectively the plaintiff in such cause, the justice who entertained such cause and rendered such judgment and who issued the execution in question, and the constable to whom such execution was delivered and by whom the same was served by summoning the defendant H.D. Lee Mercantile Company as garnishee; and that the defendant H.D. Lee Mercantile Company, the garnishee aforesaid, is the employer and creditor of the plaintiff Carter, upon whom service of garnishment was made.
The record sufficiently shows that the summons, which was issued under the hand of the defendant Flynn as justice of the peace in the cause before him in which the judgment complained of was rendered, was issued by him on December 6, 1935; that, at such time, the plaintiff Bock in said cause and judgment (defendants herein) had not filed any statement of his account or cause of action against the said Carter or against the said Cook; and that no statement was ever filed by him until December 19, 1935, the date upon which judgment by default was afterward rendered.
The summons so issued on December 6, 1935, was delivered by the justice to the defendant William P. Kennedy as constable. The return of Kennedy as such officer, endorsed on the summons, showing the manner of the execution of the same by him, is in words and figures as follows:
The record shows that Al Shuster was, at the time of the service of such summons and the return thereof, a deputy of the said William P. Kennedy as constable.
On December 19, 1935, the attorney for the plaintiff Bock in said cause before said justice, by permission of said justice, filed the following statement:
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