Cole v. Thacker

• Decision Date: 04 March 1944
• Docket Number: 36056.
• Citation: 146 P.2d 665,158 Kan. 242
• Parties: COLE v. THACKER et al.
• Court: Kansas Supreme Court

146 P.2d 665

158 Kan. 242

COLE v. THACKER et al.

No. 36056.

Supreme Court of Kansas

March 4, 1944

Rehearing Denied April 17, 1944.

Syllabus by the Court.

"Creditors' bills" are bills in equity by creditors to enforce payment of debts out of property of debtors, under circumstances which impede or render impossible collection of debt by ordinary process of execution.

A "creditor's bill" is in its nature a proceeding in rem rather than in personam, and its use is to make effective a judgment held by creditor against property of debtor which is in some way concealed.

An action in which it was sought to obtain judgment against nonresident defendant on note, with garnishment of resident defendants, and at same time to join garnishment defendants as parties for purpose of obtaining judgment setting aside an assignment of a distributive share in estate made by alleged debtor to some of garnishment defendants prior to institution of action was a proceeding in nature of a "creditor's bill".

Under statute, causes of action against several defendants, except in actions to enforce mortgages or other liens, cannot be joined unless the causes of action affect all parties to the action. Gen.St.1935, 60-601.

An action on a note against a nonresident defendant with garnishment of resident defendants could not be joined in a petition with a cause of action in nature of creditor's bill in which nonresident defendant and garnishment defendants in first action were named as defendants notwithstanding that such causes of action were blended in one statement. Gen.St.1935, 60-60l.

A condition precedent to maintenance of a creditor's bill is an affirmative allegation in petition that indebtedness described therein and on which suit is predicated has been reduced to judgment.

An action to obtain judgment on note against nonresident defendant with garnishment of resident defendants, and at same time to join garnishment defendants as parties to action for purpose of obtaining a judgment setting aside assignment of a distributive share in estate made by alleged debtor to some of garnishment defendants prior to institution of action, was subject to demurrer on ground that petition showed on its face that plaintiff had not reduced his claim to judgment.

A "garnishment proceeding" is a special and extraordinary remedy given by statute and can be resorted to only under conditions expressly authorized by statute Gen.St.1935, 60-951.

The provisions of garnishment statute are limited to proceedings by plaintiff against garnishee and defendant as parties defendant to garnishment proceedings, and cannot be construed as requiring interpleading of such persons, alleged to have property of a defendant under their possession and control as parties defendant to the action. Gen.St.1935, 60-601 60-951.

The judgment of probate court directing executor to make distribution of distributive share of estate to person entitled thereto, or to his assignee, could not be collaterally attacked in a subsequent proceeding. Gen.St.Supp.1941, 59-301(3, 12), 59-302(8), 59-2246 to 59-2249, 59-2401(9, 11, 21), 59-2404.

A "motion for judgment on pleadings" is tantamount to a "demurrer" and should be sustained where from conceded facts appearing from pleadings making up the issues involved it appears that party seeking judgment is entitled thereto as a matter of law.

A motion for judgment on pleadings on contested issue between plaintiff and garnishee defendants was properly sustained where from pleadings it appeared that claimed liability of garnishee was contingent upon result of plaintiffs collateral attack upon judgment of a probate court directing executor to make distribution of a distributive share of an estate to person entitled thereto.

Where plaintiff elected to take issue on garnishee's answer, determination of question raised by such action was the "trial of an issue" within meaning of statute, and successful party was entitled to judgment for providing for costs in garnishment proceeding, costs including an attorney's fee of $25. Gen.St.1935, 60-948, 60-959.

The statute does not authorize successful party on trial of an issue in garnishment proceeding to an allowance for costs in addition to those specifically authorized by statute. Gen.St.1935, 60-959.

1. Following Houghton v. Axelsson, 64 Kan. 274, 67 P. 825, it is held: "A creditor's bill is in its nature a proceeding in rem rather than in personam, and its use is to make effective a judgment held by a creditor against the property of the debtor which is in some way concealed." Syl. par. 1.

2. An action in which it is sought to obtain judgment against a nonresident defendant on a note executed by her, with garnishment of resident defendants, and at the same time to join the garnishment defendants as parties to the action for the purpose of obtaining a judgment setting aside an assignment of a distributive share in an estate made by the alleged debtor to some of the garnishment defendants prior to the institution of such action, is a proceeding in the nature of a creditor's bill.

3. Under G.S.1935, 60-601, except in actions to enforce mortgages or other liens, causes of action against several defendants may not be joined unless the causes of action affect all the parties to the action.

4. In the action described in paragraph 2 of the syllabus a cause of action on a note against one defendant cannot be joined in a petition with a cause of action in the nature of a creditor's bill and the fact such causes of action are blended and commingled in one statement, instead of being set forth in separate counts, will not deprive a defendant of his right to demur for misjoinder.

5. A condition precedent to the successful maintenance of a creditor's bill is an affirmative allegation in the petition that the indebtedness described therein and on which the suit is predicated has been reduced to judgment.

6. The record in the action described in paragraph 2 of the syllabus examined, and held, the demurrer to plaintiff's petition was properly sustained because the petition showed on its face the plaintiff had not reduced his claim to judgment.

7. The provisions of G.S.1935, 60-951, are limited to proceedings by a plaintiff against the garnishee and defendant as parties defendant in the garnishment proceeding and under no circumstances can they be construed as also requiring the interpleading of such persons, alleged to have prop erty of a defendant under their possession and control, as parties defendant to the action.

8. The judgment of a probate court directing an executor to make distribution of a distributive share of an estate to the person entitled thereto, or to his assignee, cannot be collaterally attacked in a subsequent proceeding.

9. A motion for judgment on the pleadings is tantamount to a demurrer and, on a contested issue between a plaintiff and a garnishee defendant, should be sustained where from facts conceded by the pleadings it appears the claimed liability of the garnishee is contingent upon the result of the plaintiff's collateral attack upon a judgment such as is described in syllabus 8.

10. When a plaintiff elects to take issue on a garnishee's answer, as provided for by G.S.1935, 60-948, the determination of the question raised by such action is the trial of an issue within the meaning of that language as found in G.S.1935, 60-959, and the successful party is entitled to judgment for costs incurred in the garnishment proceeding including an attorney's fee of $25.

Appeal from District Court, Kingman County; Clark A. Wallace, Judge.

Action in nature of a creditor's bill by Clifton Cole against Veroqua Tibbitts Thacker, Verba F. Brooks and Celestye Meisenheimer, wherein Verba F. Brooks, Celestye Meisenheimer and Frank U. Dutton, as an individual, and Frank U. Dutton, as executor of the estate of Alice L. Baker, deceased, were named as garnishee defendants. From a judgment adverse to plaintiff and in favor of the defendants Brooks and Meisenheimer and the garnishee defendant Frank U. Dutton, as executor, the plaintiff appeals.

Chas. C. Calkin, of Kingman, for appellant.

Paul R. Wunsch and John McKenna, both of Kingman, for appellees.

PARKER Justice.

The plaintiff instituted this action, in the nature of a creditor's bill, against defendants, Veroqua Tibbitts Thacker, Verba F. Brooks and Celestye Meisenheimer. Verba F. Brooks, Celestye Meisenheimer, and Frank U. Dutton as an individual, and Frank U. Dutton, as executor of the estate of Alice L. Baker, deceased, were named therein, as garnishee defendants. The judgment and rulings of the trial court on certain motions and demurrers, the character of which will be presently disclosed, were against plaintiff and in favor of defendants, Brooks and Meisenheimer, and garnishee defendant, Frank U. Dutton, as executor. Plaintiff appeals.

It appears from facts which are undisputed as follows:

The defendant, Mrs. Thacker, is an heir at law of Alice L. Baker, whose estate was being probated in Kingman County on the date of the institution of the instant action. Formerly she was a resident of Kansas and while here, together with her husband, in May 1934, executed and delivered a note to the plaintiff for the sum of $1,130, in her name as Veroqua Tibbitts. Shortly after the execution of the note, her husband died and she became a nonresident of Kansas and was a nonresident on the dates material to this action. Immaterial, for all but informative purposes, is the fact she remarried after leaving the state and her name is now Veroqua Tibbitts Thacker.

Frank U. Dutton, as indicated in the title of this action, was the duly appointed, qualified and acting executor of the estate of one Alice L. Baker, at all times pertinent to...