Farmers' Nat. Bank v. Tennison

• Decision Date: 03 July 1923
• Docket Number: Case Number: 14161
• Citation: 90 Okla. 216,217 P. 182,1923 OK 440
• Parties: FARMERS' NAT. BANK v. TENNISON.
• Court: Oklahoma Supreme Court

1923 OK 440

217 P. 182

90 Okla. 216

FARMERS' NAT. BANK v. TENNISON.

Case Number: 14161

Supreme Court of Oklahoma

Decided: July 3, 1923

Syllabus

¶0 1. Garnishment -- Right of Defendant to Move to Discharge Before Trial.

Garnishment is a species of attachment, and the defendant may at any time before judgment, upon reasonable notice, move to discharge the garnishment.

2. Same-- Exempt Property -- Proceeds of Insurance Policy.

Proceeds of policy of insurance issued to one of its members by a fraternal beneficiary association is exempt from garnishment, according to the provisions of section 6786, Comp. Stats. 1921, and the trial court properly sustained the motion to quash the garnishment proceedings, wherein it was sought to subject the proceeds of such policy to the payment of the debt of the defendant.

Error from District Court, Pottawatomie County; C. C. Smith, Judge.

Action by the Farmers' National Bank, a corporation, against Dora A. Tennison, to recover $ 1,000 and interest upon a promissory note. Plaintiff caused garnishment summons to be served on A. B. Ramsey as garnishee. Garnishee answers admitting he has possession of the property of defendant. Defendant files motion to quash the garnishment proceedings. The motion to quash sustained. Plaintiff brings error. Affirmed.

T. G. Cutlip, for plaintiff in error.

A. M. Baldwin and Brown, Brown & Williams, for defendant in error.

KENNAMER, J.

¶1 The plaintiff in error instituted this action on the 21st day of September, 1919, in the district court of Pottawatomie county against the defendant in error to recover $ 1,000 and interest alleged to be due on a promissory note. The defendant, Mrs. Dora A. Tennison, on the date of the institution of the action resided in Carter county, but was served with summons in Pottawatomie county.

¶2 On the date of the institution of the action the plaintiff caused a garnishee summons to issue in which the Woodmen of the World and A. B. Ramsey were named as garnishees. Service of garnishee summons was made upon A. B. Ramsey, and on the 13th day of October, 1919, Ramsey filed an answer, which disclosed that on the date of the service of the summons he had in his possession a check dated August 27, 1919, made payable to the defendant, Mrs. Dora A. Tennison, in the sum of $ 980.75, signed by the Sovereign Clerk of the Wood-men of the World. Ramsey held the check in the capacity of clerk of a local lodge of the Woodmen of the World. Within 20 days after the district court of Pottawatomie county acquired jurisdiction of the defendant, Mrs. Dora A. Tennison, by service of the summons upon her in Pottawatomie county, she filed a motion to quash the garnishee summons.

¶3 This motion was heard on the 5th day of January, 1923, by Honorable C. C. Smith, assigned district judge, and after the hearing of said motion the same was sustained, the trial court finding that funds were exempt under the laws of the state of Oklahoma from garnishment.

¶4 The plaintiff filed motion for new trial which was by the court overruled, and this appeal is prosecuted by the plaintiff to reverse the order of the trial court discharging the writ of garnishment. The trial court sustained the motion quashing the garnishment upon the ground that the funds represented by the check are exempt under the laws of Oklahoma.

¶5 It appears that on March 7, 1900, M. H. Tennison, now deceased, received a certificate of membership in the Sovereign Camp of the Woodmen of the World, in which Mrs. Dora A. Tennison, his wife, was named his beneficiary. That M. H. Tennison was a member of Cherokee Camp No. 167, located at Muldrow, Indian Territory, on the date of the issuance of the policy. The certificate was introduced in evidence, which shows that the Woodmen of the World is a fraternal beneficiary association incorporated under the laws of the state of Nebraska.

¶6 The first proposition argued by counsel for plaintiff for reversal of the judgment of the trial court is that no trial of the proceedings against the garnishee, when not in aid of execution, shall be had until the action between the plaintiff and the defendant shall have been disposed of. This contention is sought to be sustained by reason of the provisions of section 364, Comp. Stats. 1921, providing:

"The proceedings against a garnishee shall be deemed an action by the plaintiff against garnishee and defendant, as parties defendant, and all the provisions for enforcing judgment shall be applicable thereto, but when the garnishment is not in aid of execution, no trial shall be had of the garnishee action until the plaintiff shall have Judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs, unless the plaintiff shall give immediately, in open court, notice, to be stated in the journal entry, that he appeals from such action; in which event, the court shall make an order continuing the garnishment proceedings until the disposition of such appeal, and it shall not be necessary to take up the garnishment proceedings to the appellate court, or make the garnishee a party to the appeal."

¶7 We are unable to concur in the contention made by counsel for the plaintiff that under the provisions of the section of the statute, supra, the defendant in the action is precluded from taking any affirmative action to have the garnishment proceedings vacated. It is obvious, from a consideration of the provisions of the above statute, that it is only operative and applicable where issues are joined between the plaintiff and the garnishee. The purpose of the statute is manifest, for the reason it would not be necessary for the court to try an action involving issues joined between the plaintiff and garnishee until the...