Dahnke-Walker Milling Company v. Blake

• Decision Date: 29 March 1912
• Citation: 145 S.W. 438,242 Mo. 23
• Parties: DAHNKE-WALKER MILLING COMPANY, Appellant, v. FRANK BLAKE, State Superintendent of Insurance and Garnishee
• Court: Missouri Supreme Court

145 S.W. 438

242 Mo. 23

DAHNKE-WALKER MILLING COMPANY, Appellant, v. FRANK BLAKE, State Superintendent of Insurance and Garnishee

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from the St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Affirmed.

R. F Walker for appellant.

(1) Town mutual insurance companies are exempt from all laws of the State governing insurance companies, except the statutes requiring notice of loss, blanks for proof of same and the taxation of companies. Sec. 8084, R. S. 1899; Leather Co v. Ins. Co., 131 Mo.App. 706. The provisions of Sec. 7071, R. S. 1909, exempting the insurance superintendent from garnishment, have no application to this case. Hoover v. Ins. Co., 93 Mo.App. 111. (2) The statute in regard to the deposit of securities by town mutual companies with the superintendent of the insurance department is wholly permissive and the superintendent is subject to process of garnishment. Sec. 8086, R. S. 1899. A voluntary deposit made, as in the case at bar, is subject to the process of garnishment. Robinson v. Ins. Co., 161 F. 798; 37 Ins. Law Jour., p. 1002; Morrill v. Bond Co., 151 F. 305. (3) Where a garnishment will not cause delay and the purpose for which funds are held has been accomplished, a public officer may be garnished. When the reason for the rule ceases the rule should not be held to apply. Rood on Garnishment, secs. 32, 34; Wilbur v. Ray, 30 Vt. 581. The same rule applies even where funds are in the hands of a receiver. Robertson v. Detroit P. Works, 152 Mich. 612. (4) Under the general law the garnishee in this case is not exempt from the process of garnishment, because he holds the funds as an official. He is not such an officer as is exempted under the statute. The law in regard to garnishment at the time of these proceedings was the same as at the present. Sec. 2415, R. S. 1909. (5) The garnishment law as a whole should be strictly construed, being in derogation of the common law, and exceptions to its operation, as is Sec. 2415, R. S. 1909, intended to limit its powers, are also subject to strict construction, and must be limited to those expressly named as exempt from its provisions. 1 Shinn on Attach. & Gar., sec. 8. (6) The plaintiff was a policy holder and the statute under which this proceeding was instituted and prosecuted, expressly subjects the securities deposited with the garnishee to process to satisfy claims of policy holders. Sec. 8086, R. S. 1899. (7) This section expressly authorizes the issuance of an execution to secure the satisfaction of a judgment rendered on the claim of a policy holder. Sec. 8086, R. S. 1899. (8) The subjection of the garnishee to the writ as ancillary to and in aid of the execution is not contrary to public policy, but effectuates the purpose for which the securities are held, viz., as a "guaranty that all claims of policy holders shall be duly paid." Sec. 8086, R. S. 1899. (9) The securities, of the cash fund, held by the garnishee, are not in the custody of the law in the sense that they are not subject to garnishment. Sec. 8086, R. S. 1899. The superintendent was not the officer of a court and did not hold the securities subject to the orders of any tribunal. Rood on Garnishment, sec. 27. (10) An officer holding property in custodia legis must hold it as an arm of the court. This fund is not so held, but as prescribed by the statute it is held for the express purpose of securing the just claims of policy holders, and it was for this purpose the garnishment was served. Rood on Garnishment, sec. 27. (11) If it be held that section 8086, R. S. 1899, is entirely void, plaintiff is still entitled to a judgment for the fund in question, because it has proceeded under the general law in regard to the issuance of its execution and the seizure of the property. Secs. 2195, 2199, R. S. 1909; Douglas v. Orr, 58 Mo. 573; Caffery v. Choctaw Co., 95 Mo.App. 187. (12) To affect personal property with the lien of an execution the officer must take possession of same actively or constructively. Hopke v. Lindsay, 83 Mo.App. 85; Relf v. Ins. Co., 13 Mo.App. 184; Huff v. Morton, 94 Mo. 405. (13) The officer charged with the service of the writ of garnishment complied with the statute and constructively seized the property. Secs. 2195, 2199, R. S. 1909; Marx v. Hart, 166 Mo. 254; Dodge v. Knapp, 112 Mo.App. 513. (14) An execution must be served, levied and returned by the sheriff to whom it was delivered. Sec. 2177, R. S. 1909. And within his bailwick, Coleman v. Ins. Co., 74 Mo.App. 675. (15) Sec. 8086 is unconstitutional and void: 1st. Because it is a stay law: Sec. 15, art. 2, Constitution; Sec. 10, art. 1, Constitution of U. S.; Bailey v. Gentry, 1 Mo. 164; Blair v. Williams, 4 Litt. (Ky.) 35; 1 Freeman Ex. (2 Ed.), sec. 34. 2d. Because it is special legislation in granting a stay on executions. Sec. 53, art. 4, Constitution. 3d. Because it is further special legislation in preferring the rights of judgment policy holders over judgment creditors. Sec. 53, art. 4, Constitution. (6) The statute authorizing the deposit of funds with the superintendent of insurance, if permissive, was invalid, because it imposed no duty on town mutual insurance companies which could be enforced by law. If the statute is invalid, then the superintendent of insurance is clearly subject to garnishment, regardless of any other reason, as any other individual holding securities or funds belonging to this class of insurance companies.

Elliott W. Major, Attorney-General, John W. Matson and F. G. Ferriss for respondent.

Section 8015, R. S. 1899, provided that "the superintendent shall not be subject to garnishment, attachment or any other process, nor order in respect to such securities than by this chapter provided." This section must be read in connection with section 8086, which provides the "process" that must be pursued. A public official, holding as agent of the law and as a public official securities and moneys, is not subject to garnishment under the statutes. 14 Am. and Eng. Ency. Law (2 Ed.), 817; Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Curling v. Hyde, 10 Mo. 375; Shinn on Attach. and Garn., sec. 505; Road on Garnishment, secs. 25, 26, 27; Waples on Attach. and Gar. (2 Ed.), secs. 428, 429; Cockey v. Leister, 12 Md. 124. The statutory remedy, provided by section 8086, being a complete one, is exclusive, and no other method can be adopted by the creditor of the defendant to obtain the securities or the proceeds thereof involved in this case. Phelps v. Brumback, 107 Mo.App. 25; State ex rel. v. Snyder, 139 Mo. 554. The Boone Tobacco Co., having proceeded as directed by section 8086 has a prior lien to the plaintiff in this case. "A garnishment is like an attachment, the first service creates the prior lien." Tabbott v. Harding, 10 Mo. 350; Pritchard v. Toole, 53 Mo. 356; Whiteside v. Longacre, 88 Mo.App. 168. If this garnishee be regarded as a trustee, he is a trustee holding property which, by the terms of the trust, is to be disposed of by the order of a court, and therefore, he is not liable as garnishee in this action. Cockey v. Leister, 12 Md. 124. Where, by a statute, a new right is given and a specific remedy provided, or a new power and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute. Where the statute gives a right and furnishes the remedy, that remedy must be pursued. Sedgwick on Const. of Stat. and Const. Law (2 Ed.), pp. 343, 344; Lewis's Sutherland Stat. Const. (2 Ed.), secs. 333, 572, 720; Endlich on Interp. of Stat., secs. 154, 465; State ex rel. v. Trust Co., 209 Mo. 472; Phelps v. Brumback, 107 Mo.App. 25; State ex rel. v. Snyder, 139 Mo. 549. Statutes which are intended to promote the convenience of suitors, or to improve the procedure for obtaining legal redress, are remedial. 2 Lewis's Sutherland Stat. Const. (2 Ed.), sec. 688; Black on Interp. of Laws, p. 307. Apart from express legislative declaration to that effect, the doctrine that municipal corporations and public officers, on the ground of public policy, are not subject to statutory garnishment, thought sometimes denied, has the support of the great weight of authority. Geist v. St. Louis, 156 Mo. 643.

GRAVES, P. J. VALLIANT, J., concurs in separate opinion.

OPINION

GRAVES, P. J.

This is a garnishment proceeding by which the plaintiff seeks to recover of Blake, State Superintendent of Insurance, as successor to Vandiver, State Superintendent of Insurance, an amount sufficient to satisfy a judgment of $ 3544 and costs of suit, said judgment being in favor of plaintiff and against the Mercantile Town Mutual Insurance Company. The judgment was rendered by the circuit court of the city of St. Louis. Execution was issued directed to the sheriff of Cole county, and Mr. Vandiver, then State Superintendent of Insurance, was garnished.

Interrogatories were duly filed. To these interrogatories Mr. Vandiver filed answer. Plaintiff filed its denial of those answers. This denial was specific and set out in detail plaintiff's contentions. To this Mr. Vandiver filed a reply in which his position is fully outlined.

The first question suggested by the record is, have we jurisdiction of this cause? The second is the alleged constitutional questions here for review? This requires a scanning of the record. The amount involved does not give us jurisdiction. The actual amount of cash now held by the State Superintendent of Insurance is about $ 3600. The amount of plaintiff's judgment and execution is something less than that sum. But we have jurisdiction irrespective of the amount. The State Superintendent of Insurance is a State officer within the meaning of the...