Flynn v. Janssen

• Court: Missouri Supreme Court
• Writing for the Court: LEEDY
• Citation: Flynn v. Janssen, 284 S.W.2d 421 (Mo. 1955)
• Decision Date: 14 November 1955
• Docket Number: 44048,No. 2,Nos. 44047,s. 44047,2
• Parties: William T. FLYNN, Appellant, v. Oscar JANSSEN, d/b/a Oscar Janssen Architects and Engineers, Defendant, First National Bank in St. Louis, Garnishee, Respondent. William T. FLYNN, Appellant, v. Oscar JANSSEN, d/b/a Oscar Janssen Architects and Engineers, Defendant, First National Safe Deposit Company, Garnishee, Respondent

Page 421

284 S.W.2d 421

William T. FLYNN, Appellant, v. Oscar JANSSEN, d/b/a Oscar Janssen Architects and Engineers, Defendant, First National Bank in St. Louis, Garnishee, Respondent.

William T. FLYNN, Appellant, v. Oscar JANSSEN, d/b/a Oscar Janssen Architects and Engineers, Defendant, First National Safe Deposit Company, Garnishee, Respondent.

Nos. 44047, 44048.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1955.

Motion to Modify Opinion Denied 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, for counsel.

LEEDY, Judge.

In these companion cases, William T. Flynn appeals from orders of the Circuit Court of the City of St. Louis (1) quashing, on motion, writs of garnishment (on execution) and summonses thereunder, severally directed to respondents, First National Bank in St. Louis and First National Safe Deposit Company, as garnishees; and (2) denying his, Flynn's, motions to strike the motions of the garnishees whereon the court acted in quashing such writs and summonses. The transcripts on appeal and questions presented in each of the two cases are precisely the same, and having been briefed as one case, they will be treated and disposed of in one opinion.

In the main case out of which these garnishment proceedings arose, a judgment was rendered December 4, 1952, in favor of Flynn, as plaintiff, in the sum of $43,260 against the defendant therein, Oscar Janssen, doing business as Oscar Janssen Architects and Engineers. On March 27, 1953, Flynn sued out an execution to enforce the judgment, and in aid thereof caused the issuance and service of writs of garnishment and summonses upon respondents, the garnishees. The latter filed timely motions to quash on the ground that such writs and summonses were null and void because (1) the execution by virtue of which they were issued had been previously, 'on or about April 10, 1953,' recalled and quashed; and (2) because said execution was void ab initio for the reason the judgment of December 4, 1952, on which the issuance of said execution was based, had been set aside and vacated on or about March 12, 1953. As previously stated, the motions were sustained, and the correctness of that ruling is the question for determination on this appeal. The first error charged is that 'both motions were submitted to the court without any evidence being offered to prove the allegations contained in said motions. Neither the execution nor the writ of garnishment were offered in evidence in support of each garnishee's motion to quash * * *.'

Countering, respondents contend that the facts on which their motions to quash were based appeared on the face of the court's own records and files in the main case, and that consequently it was proper for the court to take judicial notice of them. It is unnecessary to develop the situation further than to say that respond...