CS Foreman Company v. HB Zachry Company
| Decision Date | 22 January 1955 |
| Docket Number | No. 9110.,9110. |
| Citation | 127 F. Supp. 901 |
| Parties | C. S. FOREMAN COMPANY, a corporation, Plaintiff, v. H. B. ZACHRY COMPANY, a corporation, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Paul Van Osdol, Jr., Kansas City, Mo., for plaintiff.
George L. Gordon, Kansas City, Mo., for garnishee.
Garnishee, Magnolia Pipeline Company, has moved for an order releasing and discharging it, as garnishee, for the reason that this action was commenced in the state court by the plaintiff by attachment — on the ground of non-residence and without bond — and the defendant has now filed an answer to the merits, which, garnishee argues, constitutes a general entry of appearance by defendant, and that plaintiff has not, within ten days from the service and filing of defendant's answer, filed an attachment bond, and, therefore, the attachment is "dissolved as of course", pursuant to the provisions of Section 521.050, V.A.M.S., and that, in consequence, garnishee is entitled to an order releasing and discharging it as garnishee herein.
It is true that defendant has filed an answer to the merits, but therein it preserves and renews its position — made earlier herein by motion — that the court should have sustained its motion to quash the garnishment summons directed to garnishee herein, and the return of service thereon, and its motion to quash service upon defendant by mail, which motions the court overruled, D.C., 122 F.Supp. 859, and therefore, defendant still contends that the court does not have jurisdiction over its person.
In the first place, the phrase "shall be dissolved as of course," as used in Section 521.050, V.A.M.S., does not mean that the attachment shall be dissolved automatically. It only means that a motion to dissolve the attachment, in those circumstances, would be allowed by the Court without contest. But such a motion is, nevertheless, necessary. Donovan v. Gibbs, 268 Mo. 279, 187 S.W. 46, and, in the second place, it is the defendant not the garnishee, who is empowered to file such a motion to dissolve the attachment
Moreover, the filing by defendant of an answer to the merits herein, asserting, as one of its defenses, the claim that the Court has no jurisdiction over its person, does not constitute an "entry of appearance" by it, in the sense that it can no longer challenge the jurisdiction of the Court. Under Rule 12(b) of Federal Rules of Civil Procedure, 28 U.S.C.A., a party must assert all his defenses in his...
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...F.2d 962, 966; Kamen Soap Products Co. v. Struthers Wells Corp., S.D.N.Y., 1958, 159 F.Supp. 706, 708; C. S. Foreman Company v. H. B. Zachry Company, W.D.Mo., 1955, 127 F. Supp. 901, 902; Heiss v. Nielsen, D.Neb., 1955, 132 F.Supp. 541, 3 "A corporation may be sued in any judicial district ......
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...arose before the adoption of Rule 12(b). 6 As the 1967 supplement to the text reveals, C. S. Foreman Co. v. H. B. Zachry Co., 127 F.Supp. 901 (D.Mo.1955) (opinion by Judge, later Justice, Whittaker) is in accord. See also, George v. Lewis, 204 F.Supp. 380 (D.Colo.1962). Contra is Canaday v.......