Chapman v. Yancey

• Decision Date: 08 April 1913
• Citation: 155 S.W. 1087,173 Mo. App. 132
• Parties: CHAPMAN v. YANCEY et al.
• Court: Missouri Court of Appeals

155 S.W. 1087

173 Mo. App. 132

CHAPMAN v. YANCEY et al.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied April 22, 1913.

1. APPEAL AND ERROR (§§ 339, 477) — WRITS OF ERROR — "DECISION" — TIME — STATUTES.

A writ of error can be issued to the action of the circuit court in refusing to quash an execution on a judgment, although the judgment itself had been rendered more than a year previous to the application for the writ, under Rev. St. 1909, § 2056, providing that a writ of error may issue upon any judgment or decision within a year after the rendition of the decision or judgment; and such refusal is also a "decision," contemplated by section 2067, relating to issuing of such writs in vacation within 90 days after rendition of the judgment or decision complained of.

2. GARNISHMENT (§ 217) — INTERPLEADER — ISSUES — JURISDICTION.

In garnishment, where a third party interpleads and claims the fund involved, the defendant cannot set up a counterclaim; nor can any issue whatever, except the ownership of the garnished fund, be decided, and an affirmative judgment in favor of the defendant on a counterclaim against the interpleader is void.

Error to Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by S. M. Chapman against C. D. Yancey and others. Judgment for plaintiff. From an order denying a motion by Louisa E. Graves and others, interpleaders in a garnishment proceeding, to quash an execution issued on a judgment in favor of the defendant as against such interpleaders, they bring error. Reversed.

This is rather a singular case. One S. M. Chapman brought his action against Charles D. Yancey and two others on a promissory note for $150, the action commenced in the circuit court of Butler county. Summonses were duly issued against and served upon the defendants, judgment rendered against them and an execution issued out of the circuit court of Butler county, directed to the sheriff of Stoddard county against the defendant Yancey. This writ was executed in Stoddard county, as appears by the return of the sheriff, by summoning one Charles D. Wilson, as garnishee, to appear at the return term of the writ and answer such interrogatories as might be exhibited against him, and attaching in his hands all debts due from him to the defendant Yancey. On the return day the plaintiff filed interrogatories in usual form. Afterwards the garnishee appeared and filed his answer to the interrogatories, setting up that at the time of the service of the garnishment he had in his possession, as clerk of the circuit court of Stoddard county, Missouri, the sum of $84.96, as principal debt, and also the sum of $40.35 for costs, all paid to him by the sheriff in satisfaction of a judgment for debt and costs rendered in the circuit court of Stoddard county in favor of Elizabeth Graves, Louisa E. Graves and Alice Mohan against the St. Louis & San Francisco Railroad Company, which amounts the garnishee averred are claimed by the defendant Charles D. Yancey as also by Elizabeth and Louisa E. Graves and Alice Mohan. Beyond this the garnishee denied any indebtedness and prayed the court to allow him to pay the money in his hands into court and that he be finally discharged with his costs and a reasonable attorney's fee.

The next entry in the case is an interplea by Elizabeth and Louisa E. Graves and Alice Mohan, filed October 4th and during the October, 1909, term of the Butler county circuit court. These parties claimed the fund in the hands of the garnishee and, denying that the defendant Yancey had any interest in it, claimed that they were entitled to the whole amount and prayed an order of the court directing that the money be paid over to them.

Afterwards on the 2d of December, 1909, the cause entitled S. M. Chapman v. Charles D. Wilson, garnishee of Charles D. Yancey et al., coming on for trial, as it is recited, between the plaintiff and the garnishee and neither party requiring a jury, all and singular the matters in controversy were submitted to the court and the court found from the answer of the garnishee that at the time of the service of the garnishment he had in his possession the money mentioned by him, paid over in satisfaction of the judgment mentioned, and that there is due the plaintiff in the execution issued in the cause, together with costs taxed on the execution, the sum of $119.50. Whereupon it was ordered by the court that upon the payment of the sum of $84.96 by the garnishee into court, that he be discharged from all further liability in the cause and be allowed the sum of $10, payable out of the fund in his hands, for services in answering herein and that the sum of $10 be taxed as costs against the losing parties to the suit. At this October term but in the December adjourned term thereof, and on the 3d of December, Yancey, one of the defendants in the suit of Chapman against Yancey and others, filed what is called his answer to the petition of the interpleaders, meaning by interpleaders, Elizabeth and Louisa E. Graves and Alice Mohan. In this answer he denies each and every allegation or averment of fact contained in the petition of those interpleaders and follows this denial with a counterclaim against the Misses Graves and Mohan. This counterclaim contains two counts and covers sixteen pages of the printed abstract. The first count embraces items of alleged expenses by Yancey on account of these ladies in and about certain litigation in which he, as alleged, was acting as their attorney, and amounts to $358.66; the second count is a claim for legal services alleged to have been rendered by him for the ladies, and amounts to $500, judgment being demanded against them for $858.66. On that same 3d day of December, Mr. Yancey filed a motion to dismiss the petition of the interpleaders theretofore filed, as grounds for the motion averring that the interpleaders, as appeared by their petition, seek affirmative relief against him and a judgment against him on a certain promissory note, but that the interpleaders have failed to file the note with their petition, and the instrument referred to in the petition as a basis or foundation of the interpleaders' suit, as it is called, not being filed with their petition, nor it not being alleged that it is either lost or destroyed, it is claimed that their intervening petition should be dismissed. On the same 3d day of December, 1909, Elizabeth and Louisa E. Graves and Alice Mohan, by leave of court withdrew their interplea, being granted leave to interplead on or before the first day of the next regular term of the court. Following the filing of his answer as above and his motion to dismiss the interplea, Mr. Yancey filed an application, duly verified, for a change of the venue of the cause, alleging prejudice on the part of the judge of the circuit court of Butler county. That change of venue was awarded from the Butler Circuit Court to the Stoddard Circuit Court, it being set out in the order of transfer that the parties had agreed that in lieu of a complete transcript the clerk of the circuit court of Butler county should transmit all the original papers on file to the circuit court of Stoddard county, along with a full and complete transcript of the record entries had in the cause. Up to this time, and including the order awarding a change of venue, the title of the cause was S. M. Chapman, plaintiff, v. H. N. Phillips, C. D. Yancey and Sam. M. Phillips, defendants, Charles D. Wilson, garnishee, Louisa E. Graves, Elizabeth Graves and Alice Mohan, interpleaders. The answer or interplea of Mr. Yancey is so entitled and indorsed, as appears by a certified transcript of a part of the record which has been brought here and filed in our court by the defendant in error. Sometimes the caption was S. M. Chapman, Plaintiff, v. C. D. Yancey et al., Defendants, Wilson, Garnishee. On the 6th of October, 1910, under this caption:

                "State of Missouri, |        In the Circuit Court of
                                     > ss.  Stoddard County, Missouri
                County of Stoddard. |       October Term, 1910
                Charles D. Yancey, Plaintiff, |    Venue Changed
                             v.               |  from Butler County
                Louisa Graves, Elizabeth       > Circuit Court
                Graves and Alice Mohan,       |     No. 171."
                               Defendants.    |
                

— an entry appears as of the records of the circuit court of Stoddard county, substantially as follows: That on this day it appearing from the record that the defendants having failed to file their answer to the petition of the plaintiff filed in this cause on the 3d of December, 1909, whereby the cause is wholly undefended and the defendants being called come not, it is considered by the court that the plaintiff herein should recover, and the cause being called for trial and plaintiff announcing by his attorney that he is ready for trial but the defendants come not and the allegations contained in the petition being taken as confessed, the cause is submitted to the court without the intervention of a jury and the court thereupon finds for "plaintiff" on his first count in the sum of $385, and in his second count in the sum of $500, "rendering judgment that the plaintiff have and recover of the defendants the sum of $858.66 together with the costs of this action and that he have execution therefor."

When and by what authority this change of title of the cause was made, nowhere appears. No case under any such title, so far as the record shows, was ever sent from Butler to Stoddard county, but it is upon this judgment that the executions hereafter mentioned were issued. As we have seen, the only case in which any judgment could possibly have been rendered was S. M. Chapman v. Phillips, Yancey et al., defendants, Wilson, garnishee, Graves et al., interpleaders. The Misses Graves and Mohan were never summoned in any such case and never appeared to plead in any case entitled Yancey v. Graves et al., save as hereinafter stated, when they...