Ferneau v. Armour & Co.

Citation303 S.W.2d 161
Decision Date04 June 1957
Docket NumberNo. 29617,29617
PartiesLois FERNEAU (now Biechele) (Plaintiff), Appellant, v. ARMOUR AND COMPANY, an Illinois corporation, Garnishee of Jack D. Ferneau (Defendant), Respondent.
CourtCourt of Appeal of Missouri (US)

Nelson E. Johnson, Kansas City, Forrest C. Donnell, St. Louis, for appellant.

Walther, Hecker, Walther & Barnard, Hugo M. Walther, St. Louis, Kenneth S. Lay, Clayton (for Jack D. Ferneau), for respondent.

HOUSER, Commissioner.

Garnishment. The circuit court exempted 90% of the wages attached under a writ of garnishment issued in aid of execution of a judgment for alimony and child support. The judgment creditor has appealed from the judgment allowing the exemption.

In November, 1942 the Circuit Court of the City of St. Louis granted Lois Ferneau, plaintiff, a divorce from Jack D Ferneau, defendant, and awarded plaintiff alimony and child support. The judgment, as modified on December 5, 1942, made monthly allowances in favor of plaintiff of $20 for child support and $10 for alimony. In the years that followed $105 was paid on the judgment. At the time plaintiff instituted garnishment proceedings defendant owed plaintiff $3,730 on this judgment, consisting of $1,243.33 for alimony and $2,486.67 for child support. Proceedings for the revival of the judgment of December 5, 1942 resulted in a judgment dated April 14, 1953 finding 'that heretofore to-wit on the 19th day of November, 1942 plaintiff herein recovered a judgment against the above named defendant for $5.00 per week support of Janice, minor child of the parties, and $40.00 per month alimony and $50.00 attorney fees, together with court costs, and on the 5th day of December, 1942 said decree was modified and $20.00 per month for support and maintenance of minor child Janice and $10 per month as and for alimony, upon which judgment the above named defendant has paid the amount of $105.00 and the amount of $50.00 as and for attorney fees' and adjudging 'that the judgment of December 5th, 1942 for the sum of $10.00 per month with interest at the rate of 6% per annum on $10.00 from January 5th, 1943 and on each sum thereafter due or to become due by the terms of the modification so made on December 5th, 1942 from due date by said modification fixed and determined of such sum, together with costs, be and the same is hereby revived against the defendant and the lien thereof continued according to law and that execution issue therefor and for the costs of this proceeding.'

On June 3, 1953 a writ of execution based upon the modified judgment and a writ of garnishment in aid thereof were served on Armour and Company, as garnishee, at its offices in the City of St. Louis. The writ, returnable the first Monday of the December, 1953 term of the circuit court, attached all moneys 'which you may have belonging to' defendant, summoned garnishee to answer therefor and attached 'all debts due to said' defendant 'or so much thereof, as shall be sufficient to satisfy the debt, interest and cost in the above entitled-cause.' The sum earned by defendant and unpaid to him on June 3, 1953 ($47.91), plus the amount earned by him between that date and December 15, 1953, totaled $2,702.71.

At the time the divorce was granted both parties were residents of Missouri. On June 3, 1953 and throughout the instant proceedings plaintiff was a resident of Missouri. On that date defendant was and for the six years prior thereto had been a resident of the State of Nebraska.

On December 15, 1953 garnishee filed answer to plaintiff's interrogatories stating that it had $261.32 wages due defendant as its employee; that defendant (who had remarried and had five children by his second wife) was the head of a family and under Revised Statutes of Nebraska 1943, Sec. 25-1558, claimed an exemption of 90% of his wages from garnishment; that $261.32 was the total amount withheld from defendant's wages after the 90% exemption. On December 18, 1953 plaintiff filed a denial of garnishee's answer stating that the total sum had by garnishee was $2,613.20 and that under neither Nebraska nor Missouri law was defendant entitled to any exemption.

On September 20, 1954 on plaintiff's application for an order nunc pro tunc the circuit court ordered 'that the judgment of November 19th, 1942, as modified on December 5th, 1942 for the sum of $20.00 per month as and for the support of and maintenance of minor child and $10.00 per month as and for alimony, with interest, etc. * * * be and the same is hereby revived against the defendant and the lien thereof continued according to law, and that execution issue therefor and for costs * * *.'

Garnishee moved unsuccessfully to quash the writ of garnishment on the ground that it was voided by the nunc pro tunc order of September 20, 1954.

On May 23, 1955 garnishee filed its reply to plaintiff's denial of garnishee's answer. Garnishee denied the applicability of Missouri exemption law, asserted defendant's right to the 90% exemption afforded by the Nebraska statute and set up a court order in the case of Jack Ferneau v. Armour and Company in which the District Court of Douglas County, Nebraska declared that defendant's wages 'are not subject to garnishment in excess of 10% pending the order of a court of competent equitable jurisdiction in' Nebraska.

At the time of the trial of the garnishment action the minor child of plaintiff and defendant was 16 years of age. She had lived with and had been supported by plaintiff since she was 3 1/2 years old.

The trial of the garnishment action below resulted in an order finding that defendant, a resident of Nebraska and the head of a family, was entitled to an exemption as such under the Nebraska statute exempting his wages in excess of 10% from garnishment, and a finding that after deducting defendant's exemption of 90% garnishee at the time of the service of the writ and since had become indebted to defendant in the amount of $270.27, which the court ordered garnishee to pay into the registery of the court, etc. From this judgment plaintiff appealed.

The first point relates to the validity of the writ of garnishment. Was it voided by the nunc pro tunc order? Garnishee attacked the writ by motion in the trial court and kept the point alive in its brief here. The point is that while the judgment of revivor, upon which the writ of garnishment issued, referred to the $10 alimony allowance it did not refer to the $20 child support allowance so that upon the entry of the subsequent nunc pro tunc order adding the $20 child support allowance the writ of garnishment was voided. Garnishee claims that the debt to be satisfied under the writ of garnishment was the judgment as revived, which did not include any amount for child support and which could not be the judgment as amended nunc pro tune. Garnishee further claims that its rights intervender between the date of the revivor judgment and the date of the nunc pro tunc order; that the latter could not relate back but would be effective only from the time of its actual entry; that the writ of garnishment does not conform to the judgment as changed by the nunc pro tunc order; that the writ describes a judgment different from the judgment upon which plaintiff relies; that the writ of garnishment fell when the judgment upon which it was based was destroyed by the nunc pro tunc order.

This point is without merit. The flaw in the argument is the error in the basic premise that the execution and writ were issued to enforce or were based upon the judgment of revivor. A writ of scire facias is not an original action or a new suit resulting in a new judgment. It is a mere continuation of the former proceeding, ancillary thereto, resulting in a revival of the original judgment. The order in the scire facias proceeding gives the original judgment new vitality, and makes it possible to issue a new execution on the revitalized original judgment. Humphreys v. Lundy, 37 Mo. 320; Goddard, to Use of Hyde v. Delaney, 181 Mo. 564, 80 S.W. 886; Beattie Mfg. Co. v. Gerardi, Mo.Sup., 214 S.W. 189; Flink v. Parcell, 344 Mo. 49, 124 S.W.2d 1189. Accordingly, a writ of garnishment to enforce payment following a proceeding for revival under a writ of fieri facias is founded upon and is issued to enforce the original judgment and not to enforce the judgment of revivor. The judgment of revivor need not (indeed it is preferable that it do not) recite the terms and provisions of the original judgment. The proper form of revivor judgment is a simple recital of the fact that the original judgment is revived and is still in force for the amount remaining unpaid. Kennedy v. Boden, 241 Mo.App. 86, 231 S.W.2d 862. Leaving out surplusage the revivor judgment of April 14, 1953 adjudged that '* * * the judgment of December 5, 1942 * * * be and the same is hereby revived * * *.' Its effect was to revive and give new vitality to the original judgment of November 19, 1942, as modified December 5, 1942, in toto and not only as to the alimony provision. The omission in the judgment of revivor of a part of the terms and provisions of the original judgment did not prevent the revival of the entire original judgment. The nunc pro tunc proceeding did not destroy the judgment of revivor, or 'expand' either the judgment of revivor, the writ of garnishment, or the judgment of December 5, 1942, as contended. The effect of the nunc pro tunc proceeding was to correct an error in the judgment of revivor, but it did not affect the force or validity of the writ of garnishment previously issued. The cases of Coe v. Ritter, 86 Mo. 277, and McClannahan v. Smith, 76 Mo. 428, cited in support of garnishee's contention that the rights of third parties have intervened between the date of the original judgment and the issuance of the nunc pro tunc order, are not applicable. Garnishee does not stand in the position of an innocent purchaser of realty for value without knowledge of facts...

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    ...v. Garrett, 490 P.2d 313, 315 (Colo. App. 1971); Mahl v. Aaron, 809 N.E.2d 953, 957 (Ind. Ct. App. 2004); Ferneau v. Armour & Co., 303 S.W.2d 161, 167 (Mo. Ct. App. 1957); Goodwin v. Claytor, 49 S.E. 173, 174 (N.C. 1904); State ex rel. Lankford v. Collins, 174 P. 568, 570 (Okla. 1918); Cars......
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    ...v. Garrett, 30 Colo.App. 167, 490 P.2d 313, 315 (1971); Mahl v. Aaron, 809 N.E.2d 953, 957 (Ind.Ct.App.2004); Ferneau v. Armour & Co., 303 S.W.2d 161, 167 (Mo.Ct.App.1957); Goodwin v. Claytor, 137 N.C. 224, 49 S.E. 173, 174 (1904); State ex rel. Lankford v. Collins, 70 Okla. 323, 174 P. 568......
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    ...filed in the recorder's office and the service of notice of the levy upon the garnishee Boyer. Relying on § 6323(a), Ferneau v. Armour & Co., 303 S.W.2d 161 (Mo.App. 1957), and United States v. 52.11 Acres of Land in St. Charles County, Mo., 73 F.Supp. 820 (E.D.Mo.1947),4 the District Court......
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    ...§ 452.140; see Pugh v. St. Louis Police Relief Ass'n. (1944) 237 Mo.App. 922, 179 S.W.2d 927; but see, Ferneau v. Armour and Co. (Mo.Ct.App.1957) 303 S.W.2d 161, 168--168 (exception does not apply to child support).)5 Statutes exempting particular pensions, like Covernment Code, section 314......
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1 books & journal articles
  • Laura B. Bartell, the Peripatetic Debtor: Choice of Law and Choice of Exemptions
    • United States
    • Emory University School of Law Emory Bankruptcy Developments Journal No. 22-2, June 2006
    • Invalid date
    ...their intent should be effectuated. 77 See infra Part III. 78 See, e.g., DeLotel, 140 Cal. Rptr. at 554-55; Ferneau v. Armour & Co., 303 S.W.2d 161, 167 (Mo. Ct. App. 1957); Prater, 9 S.W. at 363. But see Guidry v. Sheet Metal Workers Nat'l Pension Fund, 39 F.3d 1078, 1987 (10th Cir. 1994) ......

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