Dinkins v. Crunden-Martin Woodenware Co.

• Citation: 73 S.W. 246,99 Mo. App. 310
• Parties: DINKINS v. CRUNDEN-MARTIN WOODENWARE CO.
• Decision Date: 03 March 1903
• Court: Court of Appeal of Missouri (US)

73 S.W. 246

99 Mo. App. 310

DINKINS v. CRUNDEN-MARTIN WOODENWARE CO.

Court of Appeals at St. Louis. Missouri.

March 3, 1903.

GARNISHMENT — NONRESIDENT DEBTOR — COURTS—JURISDICTION — STATUTES — CONSTRUCTION—PROPERTY COVERED—DEBTS ACCRUING BEFORE ANSWER—FUTURE WAGES—EXEMPTIONS—RIGHTS OF GARNISHEE—JUDGMENT—EVIDENCE.

1. A resident who was a judgment creditor of a nonresident was entitled to enforce the judgment by garnishment against a resident debtor of the debtor in the Missouri courts.

2. Where garnishment was on final process in aid of the collection of a judgment of which the court took judicial notice, it was not necessary for the plaintiff to introduce the judgment in evidence against the garnishee.

3. Where the earnings of a judgment debtor between the date of service of a garnishment and the filing of the garnishee's answer amounted to more than the amount the garnishee was ordered to pay, after allowing a credit claimed by it, the judgment rendered against such garnishee was not excessive.

4. Rev. St. 1899, § 3436, provides that notice of garnishment shall attach all personal property, credits, etc., which the garnishee has in his possession or owes at the time of service, or which may come into his possession or be owing by him between that time and the filing of the answer. Sections 3445 and 3446 require the plaintiff in garnishment to exhibit interrogatories at the return term of the writ, and authorize the garnishee to answer in six days after the filing thereof, if the term continue that long, or during the term if it does not, unless the court otherwise orders. Held, that sections 3445, 3446, did not limit the indebtedness attached by garnishment to such only as accrued prior to the return term of the writ, without regard to when the interrogatories were answered, but that under section 3436 any indebtedness accruing up to the time of answer was within the garnishment.

5. Where an answer of a garnishee alleged that nothing was owing to defendant, who was the garnishee's servant employed at a monthly salary, on the ground that defendant kept constantly in debt to the garnishee by overdrafts for expenses and salary, but showed that after the garnishment, and before answer, the garnishee permitted defendant to overdraw his salary from month to month for nearly a year and a half, the garnishee was liable.

6. Under Rev. St. 1899, § 3435, authorizing an exemption of 30 days' wages to an employé where he is the head of a family and a resident of the state, such exemption cannot be allowed to a nonresident.

7. The exemption from execution of 30 days' wages to a resident employé who is the head of a family, provided by Rev. St. 1899, § 3435, is a privilege personal to the debtor, and cannot be asserted by the debtor's garnishee.

8. Under Rev. St. 1899, § 3436, providing that notice of garnishment shall attach all credits, etc., which the garnishee has at the time of the service of the notice, or which may come into his possession at any time before the filing of the answer, wages of the debtor which were unearned at the date of the notice of garnishment, but which were earned and accrued before the filing of the garnishee's answer, were subject to the garnishment.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Lynn H. Dinkins against the Crunden-Martin Woodenware Company, garnishee. From a judgment in favor of plaintiff, the garnishee appeals. Affirmed.

C. H. Kern, for appellant. Bland & Cave, for respondent.

Statement of Facts and Opinion.

GOODE, J.

At the February term, 1900, of the St. Louis circuit court, Lynn H. Dinkins recovered judgment against Frank E. Gottselig for the sum of $1,686.40 and the costs of the action. Since that time Dinkins has been endeavoring to collect the judgment by garnishment proceedings against the appellant, the Crunden-Martin Woodenware Company, by which Gottselig, the judgment debtor, has been employed as a salaried salesman. Other phases of the contest have been presented and decided by this court on two former appeals. Dinkins v. Crunden-Martin Woodenware Co., 90 Mo. App. 639; Id., 91 Mo. App. 209. The present controversy is the same one considered on the first appeal, and arose from the citing of the respondent as garnishee on June 7, 1900, the execution by virtue of which it was summoned being returnable the first Monday of the following December. Interrogatories were exhibited by the respondent December 5th, when, on the garnishee's motion, the whole proceeding was quashed on the ground that it was void because the garnishee was summoned to appear at the second term of court after service, instead of the first one. An appeal was taken to this court, which reversed the judgment, and remanded the cause with the direction that it be proceeded with in the usual course. Pending that appeal, it seems another writ of garnishment was sued out, which was the one involved in the second appeal. After this cause was remanded, the garnishee filed an answer to respondent's interrogatories February 25, 1902, and thereupon respondent filed a motion, in the nature of a demurrer to the answer, for judgment on the pleadings, which motion was sustained, and judgment entered by the court below on April 28, 1902. The court found that at the date the answer was filed the appellant had in its possession $2,300 belonging to defendant Gottselig, and ordered that within 10 days from the date of the judgment it pay said sum into court, or so much thereof as might be necessary to satisfy the judgment, interest, and costs. From that order the garnishee took this appeal.

The interrogatories exhibited were in substance these: (1) Did the garnishee, at the date of the service of the writ, have in its possession, custody, or charge any goods, chattels, money, or effects belonging to Gottselig? (2) Was it, at the service of the writ or at the time of the answer, indebted to Gottselig? (3) Was it at either time bound in a contract to pay Gottselig money which was not yet due? (4) Was not Gottselig in appellant's employ when it was served; and has he not since continued in its employ?

The first two interrogatories were answered in the negative; but to the last two a conditional affirmative answer was given, setting out the nature of the contract between Gottselig and appellant. This answer stated that, when the garnishee was notified, Gottselig was in its employ under a verbal contract, the terms of which were that he should be paid $100 a month at the end of each month in the state of Mississippi, where he resided as agent of appellant, or in Louisiana, those two states being the territory in which he traveled as salesman. The answer further stated that Gottselig was authorized by the contract to draw on appellant at all times for such money as he needed to expend in promoting appellant's business, and for no other purpose; but that at the end of each month he had the right to take out of the funds remitted to him the sum of $100, or the amount of his salary for that month. Gottselig deducted $100 each month from June to December, both inclusive, for salary, but during all of said months he is alleged to have been largely indebted to the appellant on account of money remitted to him beyond the sum of his actual expenses and salary, so that during no month was the appellant in his debt, but during all of them Gottselig was in appellant's debt. In other words, as we understand the answer, Gottselig continually overdrew. The answer states that on the 1st day of January, 1901, the contract was changed by raising Gottselig's salary to $125 per month, payable at the end of each month, as before, in the state of Mississippi, of which he was a resident, or in Louisiana. In other respects the contract continued as before. The answer avers that thereafter during each month the money which Gottselig drew, and which was remitted to him for expenses and salary, largely exceeded those items, and that at no time was appellant in his debt, but he was in appellant's debt, and when appellant answered he owed it $629.49 on a balance of accounts, and the further sum of $105 on account of a judgment against appellant as garnishee in favor of Dinkins, which it had satisfied; also for $20 attorney's fee allowed appellant for answering. The answer further states that appellant allowed Gottselig to retain and convert, out of the money remitted to him, his monthly salary each month, because it knew Gottselig was the head of a family, wholly insolvent, and therefore entitled to an exemption against Dinkins' judgment to the amount of $300 under the statutes of the state of Missouri; that appellant credited Gottselig with his salary on its account with him, knowing the salary was exempt from garnishment; and pleads the exemption in defense of this proceeding. It is further stated that all money remitted to Gottselig after service of garnishment was in response to drafts made by him on the Crunden-Martin Woodenware Company on account of his anticipated expenditures as agent and salesman, and that none of said remittances became the property of Gottselig. It is alleged that appellant was not at any time indebted to Gottselig from the service of the garnishment to the date of answering, except as above stated; wherefore appellant prays it be discharged. The $105 and the attorney fee, for which a credit is claimed in the answer, pertained to the second garnishment proceeding, which was the cause disposed of in 91 Mo. App. 209.

The motion filed by the respondent for judgment avers that the answer of the garnishee, the substance of which has been quoted, shows Gottselig earned a salary under his contract with the garnishee to the amount of $2,300, and that said sum was paid to him by the garnishee, between the date of service and the filing of the answer.

1. The jurisdiction of this garnishment proceeding to collect a debt due to a nonresident of the state from a resident of it is properly...