Flynn v. First Nat. Safe Deposit Co.

• Decision Date: 12 December 1955
• Docket Number: Nos. 44741,No. 2,44740,s. 44741,2
• Citation: 284 S.W.2d 593
• Parties: William T. FLYNN, Appellant, v. FIRST NATIONAL SAFE DEPOSIT COMPANY, Respondent. William T. FLYNN, Appellant, v. FIRST NATIONAL BANK IN ST. LOUIS, Respondent
• Court: Missouri Supreme Court

Page 593

284 S.W.2d 593

William T. FLYNN, Appellant, v. FIRST NATIONAL SAFE DEPOSIT COMPANY, Respondent.

William T. FLYNN, Appellant, v. FIRST NATIONAL BANK IN ST. LOUIS, Respondent.

Nos. 44741, 44740.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

N. Murray Edwards, Ninian M. Edwards, St. Louis, for appellant.

Thomas S. McPheeters, Jr., John L. Donnell, St. Louis, for garnishees-respondents. Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.

STOCKARD, Commissioner.

These companion cases involve the allowance to garnishees of attorney fees in the amount of $250 each after motions to quash two writs of garnishment were sustained. The transcripts on appeal and questions presented in each of the two cases are the same. They were briefed as one case, and we will dispose of them in one opinion.

William T. Flynn obtained a judgment on December 4, 1952 against Oscar Janssen, d/b/a Oscar Janssen Architects and Engineers, in the amount of $43,260. Although a motion for new trial had been sustained and the judgment set aside, plaintiff sued out an execution in an apparent effort to enforce the judgment and caused the issuance and service upon respondents of writs of garnishment in aid of execution. The trial court subsequently quashed the execution, and this action was affirmed by this court. Flynn v. Janssen, Mo.Sup., 266 S.W.2d 666. Separate motions by each respondent to quash the writs of garnishment and summonses in garnishment were sustained, and on appeal to this court this action was affirmed. Flynn v. Janssen, Nos. 44047, and 44048, Mo.Sup., 284 S.W.2d 421.

The motions to quash the writs of garnishment contained a request for a reasonable allowance for expenses and attorney fees to each garnishee as authorized by Section 525.240, RSMo 1949, V.A.M.S., but the judgments entered on September 18, 1953 quashing the writs of garnishment made no such allowances. On September 21, 1953 appellant filed a notice of appeal in each case to the judgment quashing the writ of garnishment. On September 25, 1953 each garnishee filed a separate motion requesting such allowances, and on October 15, 1953, after hearing, an allowance to garnishee of $250 for attorney fees to be taxed as costs was made in each case. Plaintiff appealed to the St. Louis Court of Appeals from the 'Order and Judgment' in each case granting attorney fees to be taxed as costs against him, and that court transferred both cases here. Flynn v. First National Bank in St. Louis, and Flynn v. First National Safe Deposit Co., Mo.App., 273 S.W.2d 756. These are the appeals now before this court.

Inasmuch as each appeal involves only a total of $250, we must determine if this court has jurisdiction.

The allowance of expenses and attorney fees authorized by Section 525.240 RSMo 1949, V.A.M.S., requires judicial action on the part of the trial court and are costs in the principal proceeding in garnishment and should be taxed as such. Christian County v. Dye (Bank of Highlandville, Garnishee), Mo.Sup., 132 S.W.2d 1018. This allowance to a garnishee when authorized must be made by the trial court, if at all, during the time the trial court retains jurisdiction over the judgment discharging the garnishee, or in the instant cases, while the trial court retains jurisdiction over the judgment quashing the writ of garnishment, 'inasmuch as it forms a component part of the judgment.' Ladd v. Couzins, 52 Mo. 454. See also State ex rel. Williams v. Daues, 334 Mo. 91, 66 S.W.2d 137 and Christian County v. Dye, supra. The allowances made to the garnishees in the instant cases were costs and were so adjudged and taxed by the trial court against plaintiff. As such, the allowances formed an integral and component part of the judgments sustaining the garnishees' motions to quash the writs of garnishment.

The following series of cases present a comparable situation. A suit brought by the executor of a will against the heirs of the testatrix and those claiming under the will to determine their respective rights was determined in the trial court against certain heirs who appealed to the Supreme Court. The heirs filed a motion in the trial court for the allowance of their costs, including attorney fees, to be paid out of the funds of the estate. This motion was sustained and the executor appealed to the Kansas City Court of Appeals. In transferring the appeal to the Supreme Court, the Court of Appeals stated: 'It is true the allowance was for $600, which amount in a controversy would ordinarily in a separate proceeding give this court exclusive jurisdiction on appeal, but as the amount was taxed as costs in the case, it is a part of the judgment itself, as the court had no authority to render any separate judgment whatever for costs; that is to say, there could only be one judgment.' Sandusky v. Routt, Mo.App., 141 S.W. 11. This court decided the appeal taken by the heirs, Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150, before it considered the appeal taken by the executor from the allowance of attorney fees, but it accepted jurisdiction and commented that the 'appeal was properly transferred here.' Although the appeal involved only $600 this court retained jurisdiction and decided the case on its merits. Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390, 393.

The allowances of attorney fees in the instant cases were taxed as costs and were an integral and component part of the principal judgments over which this court had jurisdiction on appeal. Therefore the present appeals were properly transferred here.

Appellant challenges the jurisdiction of the trial court to enter the orders allowing attorney fees to be taxed as costs, and he contends that when he filed his notices of appeal from the judgments of the trial court quashing the writs of garnishment, jurisdiction for all purposes was automatically transferred to the appellate court. In support of this position appellant cites Bromschwig v. Carthage Marble & White Lime Co., 334 Mo. 830, 68 S.W.2d 820; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W.2d 713; City of St. Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23.

The judgment to be rendered in a garnishment proceeding is expressly denominated a 'final judgment.' Section 525.170 RSMo 1949, V.A.M.S. Conceding that a garnishment proceeding in aid of execution is technically not the institution of a new suit but only an incidental means of obtaining satisfaction of the judgment upon which the execution has been issued, Smith v. Bankers Life Ins. Co. of Nebraska, Mo.App., 170 S.W.2d 111, yet the nature of the proceeding is such as to require that the issues made up by the pleadings 'shall be tried as ordinary issues between plaintiff and defendant.' Section 525.190 RSMo 1949, V.A.M.S. Not only is the judgment in a garnishment proceeding a 'final judgment' in that it finally...