First Nat. Bank v. Proffitt

• Decision Date: 15 April 1927
• Docket Number: No. 15881.,15881.
• Citation: 293 S.W. 524
• Parties: FIRST NAT. BANK OF WOODWARD, OKL., v. PROFFITT (MOOREHEAD et al., Interpleaders; PAGE, CASIDA HAMER, Garnishees.
• Court: Missouri Court of Appeals

293 S.W. 524

FIRST NAT. BANK OF WOODWARD, OKL., v. PROFFITT (MOOREHEAD et al., Interpleaders; PAGE, CASIDA HAMER, Garnishees.

No. 15881.

Kansas City Court of Appeals, Missouri.

February 14, 1927.

Rehearing Denied March 7, 1927.

Certiorari Denied April 15, 1927.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit in attachment by the First National Bank of Woodward, Old., against J. W. Proffitt, wherein Page, Casida & Hamer were made garnishees, and wherein James Moorehead and another and B. G. Housel, as trustee in bankruptcy of J. W. Proffitt, were separately interpleaded. From a judgment for plaintiff and interpleader Moorehead, B. G. Housel, as trustee in bankruptcy of J. W. Proffitt, appeals. Affirmed.

Frank W. Yale, James M. Johnson, and Ernest S. Ellis, all of Kansas City, for appellant.

Miller, Winger & Reeder and Frank P. Barker, all of Kansas City, for respondent First Nat. Bank of Woodward, Okl.

Milford W. Rider and H. G. Leedy, both of Kansas City, for interpleader Moorehead.

BLAND, J.

This is a suit by attachment, brought under the provisions of section 1182, R. S. 1919. Defendant was brought into court under the provisions of section 1204, R. S. 1919, providing for substituted service. A garnishee, who was summoned, paid into court the sum of $5,332.57. The court rendered judgment in favor of plaintiff, sustaining the attachment, and that plaintiff recover the money garnished to the sum of $4,797.57. Judgment was also rendered in favor of one Moorehead, an interpleader, in the sum of $500. The court ordered that the costs be paid out of the funds garnished. Interpleader Hansel has appealed.

The facts show that plaintiff, on September 18, 1924, filed its petition in the circuit court of Jackson county, Mo., in two counts, to recover from defendant J. W. Proffitt, a resident of Oklahoma, the aggregate sum of $6,505 upon two bills of exchange. An affidavit in attachment was filed with the petition. The clerk issued the writ of attachment, in due form, directed to the sheriff of Jackson county, Mo., returnable to the next ensuing term of said court to be held on November 10, 1924. The writ was returned "non est" as to the defendant but was executed by the summoning of Page, Casida & Hamer, a live stock commission firm, as garnishee. Interrogatories were filed, and the garnishees answered that they had $5,332.57 belonging to the defendant on hand which they paid into court. On December 3, 1924, at the return (November) term, 1924, of the court, plaintiff caused to be issued another summons under section 1204, R. S. 1919, summoning the defendant to appear and answer it the next term (January, 1925) of the court. This summons was served upon defendant in due time, and return thereon was made. Thereafter interpleader Moorehead filed his interplea, claiming a part of the funds so paid into court.

On May 5, 1925, defendant Proffitt was adjudged a bankrupt by the United States District Court for the Western District of Oklahoma and interpleader Housel thereupon was duly appointed and qualified as trustee in bankruptcy of his estate. Thereafter on August 4, 1925, said Housel, as such trustee, filed an application in this cause for an order requiring plaintiff, interpleaders, and the garnishees to show cause why the service should not be quashed, the attachment dissolved, the fund paid into court by the garnishees ordered paid and turned over to him as such trustee, and the cause dismissed at that cost of plaintiff for want of jurisdiction. Such an order was issued, and plaintiff filed a response to the same, denying the invalidity of the service or of the attachment and asking leave to amend the affidavit in attachmont. The matter was heard in division No. 6 of the circuit court when, on the 2d day of January, 1926, it ruled that due and proper service of sufficient process had been made in this cause upon the defendant, plaintiff was given leave to file an amended affidavit in attachment, and the application of the interpleader Housel for a formal order of dismissal was denied. On January 4, 1926, plaintiff filed an amended affidavit in attachment in pursuance of the order or permission of the court. On February 6, 1926, interplaader Housel filed in the cause his interplea in the nature of a plea in abatement to the jurisdiction of the court for want of due and proper service of process upon the defendant Proffitt, setting forth the facts substantially the same as those pleaded in his motion to slow cause. To this interplea plaintiff tiled a general denial. On March 22, 1926, the interplea was heard in division No. 2 of the circuit court, and the judge of that division, being advised of the previous ruling in division No. 6, made an order that, in view of the fact that the same matter had been passed upon by another judge, "the court sustains the attachment and holds the service of process on defendant Proffitt good and sufficient," and judgment was rendered against Housel on his interplea in the nature of a plea in abatement to the jurisdiction of the court, and final judgment was entered as aforesaid. Interpleader Housel, trustee, has appealed.

The original summons issued in the cause a ad contained in the writ of attachment, roads as follows:

"In the Circuit Court of Jackson County, Missouri, at Kansas City.

"The State of Missouri, to the Sheriff of Jackson County, Greeting:

"We command you to * * * summon the said J. W. Proffitt to be and appear before our Circuit Court of Jackson County, Missouri at the Court House in Kansas City, Missouri, on the 2nd Monday in November next, it being the 10th day of said month, then and there to answer the petition of First National Bank of Woodward, Okl., a banking corporation wherein judgment is asked for $6,505, * * * and have you then and there this writ, certifying thereon how you have executed it."

The summons issued on December 3, 1924, under section 1204, R. S. 1919, and the return thereon, reads as follows:

                "Circuit Court—Summons
                

"The State of Missouri, to the Sheriff or Other Officer of the County of Alfalfa and State of Oklahoma Authorized by Laws of Said State to Serve Process, Greeting:

"You are hereby commanded to summon J. W. Proffitt to appear in the circuit court of Jackson county, Mo., at the county courthouse in Kansas City, on the second Monday in January next; and unless you, the said party so summoned, file your answer within three days thereafter to the petition of First National Bank of Woodward, Okl., a banking corporation (suit having been commenced by attachment), the same will be taken as confessed, and that you then and there have this writ, and that you certify how you execute the same.

"Witness W H Harper, clerk of the circuit court with the seal thereof affixed, at office in Kansas City, Mo., this 3d day of December A. D. 1924.

                "[Seal] W. H. Harper, Clerk
                "By Teresa G. McDonald, Deputy Clerk."
                "Return
                "State of Oklahoma, County of Alfalfa—ss
                

"Chas. Lovell, deputy sheriff, being duly sworn, makes oath and says that he executed the annexed process in the county and state aforesaid on the 5th day of December, 1924, by delivering a copy of the petition and summons hereto annexed to J. W. Proffitt.

                "Chas. Lovell
                

"Subscribed and sworn to before me this 10th day of December A. D. 1924, by Chas. Lovell, who I certify was at the date of such service and now is deputy sheriff of Alfalfa county, Old., and as such officer duly authorized to serve process in said state and is an officer of the court of which I am court clerk.

"Witness my hand and seal of the district court within and for the county and state aforesaid. Done at office in Cherokee, Okl., on the date last aforesaid.

                "Carrie Sellers, Court Clerk."
                

To the left of the signature of Carrie Sellers appear the letters "SEAL" surrounded by the words "Court Clerk, Alfalfa County, Okl.," all inclosed in a circle.

Both parties in this appeal agree that—

"It is upon the validity and sufficiency of the `summons' (that of the 3d day of December, 1924) above mentioned and the validity and sufficiency of the purported delivery thereof as shown by the said `return' that this action depends."

It is insisted by the appellant that the summons issued on December 3, 1924, by the clerk of the circuit court of Jackson county, Mo., is not only insufficient, but that the return thereon likewise does not measure up to the requirements of section 1204 of the statute, and that therefore the court was without jurisdiction to proceed in the cause, and that, by reason of the failure of plaintiff to cause to be issued, at the succeeding term to that when the original summons was returned non est, a valid alias summons, a discontinuance of the action by operation of law occurred, and appellant in its capacity as trustee for defendant had a right to the fund impounded, and that the court erred in dismissing his motion to show cause and interplea in the nature of a plea in abatement to the jurisdiction.

It is contended that the summons was invalid and insufficient to give the court jurisdiction over the fund because, among other defects, it did not contain the writ of attachment. In arguing this point, appellant points out the familiar rule that

"It is to be remembered that, in order to acquire jurisdiction of the person or the property of a defendant, the mode designated by statute, no matter what that mode may be, must be strictly followed."

We think there is no merit in the contention made. This suit, as before stated, was commenced under section 1182, which provides:

"Suits may be instituted in courts of record, except when the statute law of this state otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second by * * * summons against the person or of attachment...