Denning v. Denning

• Decision Date: 01 November 1960
• Docket Number: No. 6371.,6371.
• Parties: Margaret DENNING, Appellant, v. Edward DENNING and Mary Denning, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

283 F.2d 748 (1960)

Margaret DENNING, Appellant, v. Edward DENNING and Mary Denning, Appellees.

No. 6371.

United States Court of Appeals Tenth Circuit.

November 1, 1960.

Abraham Weinlood, Hutchinson, Kan. (Weinlood, Cole, Oswalt & Shaffer, Hutchinson, Kan., were with him on the brief), for appellant.

William Porter, Wichita (Charles R. Ogden and Frank M. Ogden, Guymon, Okl., William Tinker, Arthur W. Skaer, Jr., Hugh P. Quinn, Alvin D. Herrington, Darrell D. Kellogg and Richard T. Foster, Wichita, Kan., were with him on the brief), for appellees.

Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges.

PHILLIPS, Circuit Judge.

Margaret Denning and Edward Denning were formerly husband and wife. In a divorce action brought by Edward against Margaret in the District Court of Morton County, Kansas, the court awarded Edward a decree of divorce and adjudged that Edward pay to Margaret the sum of $45,000 in installments, as follows: $15,000 on September 7, 1957, $10,000 on September 7, 1958, $10,000 on September 7, 1959, and $10,000 on September 7, 1960, and further, that all property, real and personal, owned by Edward be set over to him free and clear of all claims and demands of Margaret. Thereafter, on November 22, 1958, Margaret commenced the instant action against Edward Denning and Mary Denning. In her complaint Margaret set out the decree of divorce, the money judgment awarded her, and further alleged that Edward had paid on such judgment only $10; that Margaret had unsuccessfully attempted to enforce said judgment by execution, garnishment, and proceedings in aid of execution; that on November 16, 1956, the date on which Edward commenced the divorce proceeding, Edward and Margaret were the owners of certain land situated in Texas County, Oklahoma;¹ that on November 23, 1956, a deed purporting to convey such land from Edward to Mary Denning, his mother, was recorded in Texas County, Oklahoma; that Mary Denning paid no consideration for such purported conveyance; that such conveyance was made with the intent of Edward and Mary to hinder, delay and defraud Margaret and prevent her from collecting any judgment which she might obtain against Edward in the divorce action and was made with the expectation that a substantial judgment would be rendered against Edward and in favor of Margaret in such divorce action; that Margaret did not discover such conveyance until the month of June, 1957. Margaret prayed for a judgment adjudging such conveyance fraudulent and void, requiring Mary Denning to account for the income from such property and apply the same to plaintiff's judgment; requiring Mary to make a proper conveyance of such lands to a receiver or officer of the court; directing such receiver or officer to dispose of such lands to the extent necessary to satisfy the sums accrued and past due on Margaret's judgment against Edward, and awarding relief that would insure the payment of the remaining sums due on such judgment and for costs and attorneys' fees.

On March 10, 1958, Abraham Weinlood filed a sworn affidavit for garnishment in the divorce action, averring therein that he is one of the attorneys for Margaret in the divorce action; the award of judgment in the divorce action in favor of Margaret and against Edward; that such judgment remains in full force and effect; that Edward had failed and refused to pay the sum of $15,000 due on such judgment September 7, 1957; "That Defendant and this affiant verily believe that Mary Denning, of Elkhart, Kansas, is indebted to the Plaintiff, Edward Denning, and has in her possession moneys, credits and personal property belonging to said Plaintiff"; that Edward does not have property liable to execution sufficient to satisfy such judgment, and that the "moneys, credits and personal property above mentioned are not by law exempt from seizure or sale upon execution." On March 19, 1958, a garnishee summons was executed in the divorce action and duly served personally on Mary on March 24, 1958. The summons required Mary, as garnishee of plaintiff Edward, to answer "whether you are indebted to or have in your possession or under your control, any property, real or personal, belonging to said Plaintiff and file a copy of your answer with the Clerk of this Court." (Italics ours.)

On April 14, 1958, Mary filed her sworn answer as garnishee, in which she stated that the garnishee summons was served on her on March 25, 1958; "that she was then, and is now, in no manner and upon no account indebted or under liability to the plaintiff, Edward Denning, and that she then had and now has in her possession or under her control, no real estate, and no personal property, effects, or credits of any description, belonging to said plaintiff, or in which he has any interest, and is in no manner liable as garnishee in this action."

On April 21, 1958, Margaret, through her attorney, Abraham Weinlood, prepared and signed a notice to Mary Denning of Margaret's election to take issue on Mary's answer as garnishee. On the same date, Abraham Weinlood enclosed such notice in an envelope addressed to Mary Denning at Elkhart, Kansas, and forwarded it to her by registered, postage prepaid mail through the United States Post Office at Hutchinson, Kansas, with a request for a return receipt and instructions to deliver to addressee only. The envelope was stamped "Elkhart, Kans Apr. 22, 1958." It was returned to the sender with a notation "Refused" and received in the Post Office at Hutchinson, Kansas, April 23, 1958. The envelope, with its contents, was filed in the divorce proceeding.

Mary filed her answer in the instant action. In the third defense she set up the garnishment proceeding; alleged that in her answer in garnishment she denied that she had in her possession or control any real estate belonging to Edward or in which he had any interest; that no exception was taken to such answer; and that by reason thereof the truth of the allegations in her answer in garnishment had become conclusive and was a bar to the instant action by Margaret.

At the pretrial proceedings the affidavit, summons and answer of the garnishee were offered and received in evidence. Margaret, through her attorney, admitted that nothing further was filed in the garnishment action. Mary admitted, through her attorney, the attempt to serve her by registered mail with the notice referred to above; that delivery was refused; that the envelope in which the notice was enclosed was returned; that it was filed in the divorce proceedings; and that it was thereafter opened by the judge of the District Court of Morton County, Kansas, in another proceeding.

Mary filed a motion for summary judgment. The court sustained the motion on the ground that the answer of the garnishee was conclusive of the facts therein stated, by reason of the failure of Margaret within 20 days to effectively serve the garnishee, Mary, with a notice in writing that she elected to take issue on the answer. Margaret has appealed.

Section 60-941, G.S.Kan.1949, provides for the affidavit in garnishment. It requires the affidavit to state, among other things, that the plaintiff, or some person in his behalf, stated:

"* * * that he verily believes that some person, naming him, is indebted to or has property, real or personal, in his possession or under his control belonging to the defendant * * *."

Section 60-943 of such Kansas Statutes provides for the summons in garnishment and prescribes the form for such summons. The prescribed form in part reads:

"* * * You are hereby summoned, * * * and required on or before twenty days from the return day, to wit, _____, 19__, to answer according to law whether you are indebted to,

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