Domann v. Pence, 41542

• Decision Date: 12 December 1959
• Docket Number: No. 41542,41542
• Citation: 347 P.2d 373,185 Kan. 702
• Parties: Evelyn DOMANN, Appellee, v. Charles PENCE and William Moon, Defendants, Farmers Mutual Automobile Insurance Company Garnishee, Appellant.
• Court: Kansas Supreme Court

Page 373

347 P.2d 373

185 Kan. 702

Evelyn DOMANN, Appellee, v. Charles PENCE and William Moon, Defendants, Farmers Mutual Automobile Insurance Company Garnishee, Appellant.

No. 41542.

Supreme Court of Kansas.

Dec. 12, 1959.

Rehearing Denied Jan. 27, 1960.

Syllabus by the Court.

1. A proceeding in garnishment is a special and extraordinary remedy given by statute and the procedure is governed by G.S.1949, 60-940 to 60-965, incl.

2. The statutory conditions for the exercise of such a proceeding are conclusive and exclusive of all others, and cannot be extended to cover general procedural conditions and situations otherwise provided for by the code of civil procedure.

3. When an issue is made between the plaintiff and the garnishee in a garnishment proceeding, in conformity with the provisions of G.S.1949, 60-945 and/or G.S.1949, 60-948, the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition and the garnishee's affidavit the answer thereto; and upon an issue made between the parties in the manner indicated a demurrer which seeks to dispose of such issue should be overruled by the trial court on the ground it is an improvident and improper pleading which is not authorized or permitted by the statute governing procedure in a garnishment proceeding.

J. W. Lowry, Atchison, argued the cause, and Steadman Ball, William E. Stillings, and Robert D. Caplinger, Atchison, were with him on the briefs for appellant.

Harold E. Doherty, Topeka, argued the cause, and William C. Leech, Oskaloosa, was with him on the briefs for appellee.

PARKER, Chief Justice.

This is a garnishment proceeding arising out of a negligence action which resulted in a verdict and judgment in the district court of Jefferson County against the defendant Charles Pence in the amount of $29,450. The judgment was affirmed in this court on appeal and is reported in Domann v. Pence, 183 Kan. 135, 325 P.2d 321, where all facts necessary to a proper understanding of that decision are set forth at length and will not be repeated.

Subsequent salient facts giving rise to the present appeal may be stated thus:

After affirmance of the judgment in Domann v. Pence, supra, the plaintiff filed an affidavit for garnishment after judgment in the district court of Jefferson County in the same action wherein, after reciting the judgment and issuance of an execution thereon, alleged to have been returned wholly unsatisfied, she stated that plaintiff had good reason to and did believe that the Farmers Mutual Automobile Insurance Company, a corporation, of Madison, Wisconsin, with authority to do business in the state of Kansas, had property of the defendant Pence in its possession or under its control and was indebted to such defendant in the sum of $30,000 by reason of certain policies of insurance, describing them; and asked for service of garnishment summons on such company requiring it to answer concerning such property and indebtedness.

Following service of garnishment summons, and on December 5, 1958, the company filed an answer in the form of an affidavit as authorized by G.S.1949, 60-946. For all purposes here pertinent it may be said such answer sets forth the judgment; admits that at the time of the rendition thereof the company had a policy of insurance on the automobile involved in the action, wherein and whereby it undertook to indemnify the driver of the insured automobile against loss by bodily injury by the driver of said automobile, to the extent of $15,000, costs taxed against the insured, and interest on the entire judgment until the face amount of the policy had been paid; makes the insurance policy a part of the answer; asserts that, subsequent to the affirmance of the judgment, and on June 16, 1958, it had paid, pursuant to the demands of such policy, to the clerk of the district court of Jefferson County the sum of $15,000 and interest in the sum of $1,638.07 and costs in full on the judgment; alleges that on October 27, 1958, the date on which it was served with garnishment summons, the company was not then or thereafter in any manner or account indebted, liabile or under liability to the defendant Charles Pence; denies that on the date of the issuance of such summons or on the filing of its answer it had in its possession or under its control any real estate, personal property, effects or credits of any description belonging to such defendant or in which he had any interest; avers that it was in no manner liable as garnishee in the action; and prays that the garnishment be dissolved.

On December 19, 1958, the plaintiff filed an instrument titled 'Exceptions to Answer of Garnishee,' no part of which has been abstracted. Thereafter, and on February 16, 1959, she filed another instrument titled 'Amended Exceptions to Answer of Garnishee.' In substance this amended instrument asserts that under the terms of the policy it was the duty of the company to investigate and defend the defendant Pence; alleges several grounds of negligence and bad faith on the part of the company in the investigation of the case, in the preparation for trial and in the trial itself; and requests the trial court to either direct the garnishee to pay the excess of the judgment over policy limits or to set the same down for jury trial to try the issues of good faith and negligence in the investigation and the trial of the cause.

The garnishee filed a demurrer to the plaintiff's exceptions to its answer, based on the ground it appeared from the face thereof that such exceptions to the answer did not state facts sufficient to justify or support the relief requested for reasons which, so far as here pertinent, were that the court had no jurisdiction of the garnishee or jurisdiction to grant the relief requested in an extraordinary proceeding; that the plaintiff was not the real party in interest in the question sought to be raised by said exceptions; and that such exceptions failed to state facts sufficient to constitute a cause of action in an extraordinary proceeding.

Thereafter the trial court permitted the demurrer to the amended exceptions to be presented and argued and, after consideration thereof, held that such demurrer should be overruled.

Thereupon the garnishee gave notice it was appealing from the order overruling its demurrer to the amended exceptions to its answer and now seeks appellate review of that order.

In the face of the related facts, the provisions of our garnishment statute, our decisions construing their force and effect, and an issue raised by the appellee challenging the present appeal, we are confronted with a question pertaining to practice and procedure in garnishment proceedings which we believe must be considered and determined before any consideration is given to numerous questions raised by both the appellant (garnishee) and the appellee (garnisher) relating to the merits of their respective rights on final determination of the involved garnishment claim.

In giving consideration to the foregoing question it may be stated:

1. That, as stated, the precise issue raised by appellee in the form of a claim the appeal should be dismissed is that under the provisions of G.S.1949, 60-948, issues had already been joined by the parties on the vital question involved in the garnishment proceeding, hence the trial court properly overruled the demurrer on that basis. We take note that inherent in such claim is the additional proposition and real issue, which must be decided, whether under our garnishment statute and decisions construing the force and effect to be given provisions thereof, hereinafter specifically mentioned, pleadings are limited as therein indicated and cannot be extended at the whim and will of the parties, to authorize or permit additional hybrid pleadings such as a demurrer to amended exceptions to a garnishee's answer.

2. That the portions of our statute pertaining to garnishment proceedings are found...