Geist v. City of St. Louis

• Decision Date: 12 June 1900
• Parties: GEIST v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

57 S.W. 766

156 Mo. 643

GEIST v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Reversed and Remanded (with directions).

B Schnurmacher and Chas. Claflin Allen for appellant.

(1) Moneys due and owing by municipal corporations can not be reached, either by garnishment or by equitable proceedings in order to satisfy the claims of judgment creditors of the person to whom such moneys are owing. Addystone Pipe & Steel Co. v. City of Chicago, 170 Ill. 580; Morgan v. Rust, 100 Ga. 346; Roeller v. Ames, 33 Minn. 132; City of Memphis v. Laski, 9 Heiskell (Tenn.) 511; Burnham v. City of Fond du Lac, 15 Wis. 193; School District v. Gage, 39 Mich. 484; Switzer v. City of Wellington, 40 Kan. 250; People ex rel. v. Mayor of Omaha, 2 Neb. 166; McDougal v. Hennepin Co., 4 Minn. 184; Drake on Attachments (7 Ed.), sec. 516, p. 461; Mechem's Public Offices and Officers, sec. 875. (2) While a public officer may not assign or transfer his unearned salary, but may when earned, yet public policy will not permit the same, whether earned or unearned, to be reached by judicial proceedings, at the instance of his judgment creditors and appropriated towards the payment of his debts. Hawthorn v. St. Louis, 11 Mo. 59; Fortune v. St. Louis, 21 Mo. 239; Sanger v. Waco, 15 Tex. Civ. App. 424; Lewis v. Denver, 9 Colo.App. 228; Baltimore v. Root, 8 Md. 95; McLellan v. Young, 54 Ga. 399; Hightower v. Slaton, 54 Ga. 108; Dillon's Mun. Corp., sec. 101.

Kinealy & Kinealy for respondent.

(1) Moneys due and owing by a municipal corporation can be subjected to the satisfaction of the claims of judgment creditors of the person to whom such moneys are owing. Johnson v. Geneva Pub. Co., 122 Mo. 102; St. Louis v. O'Neil Lumber Co., 114 Mo. 74; Lackland v. Garesche, 56 Mo. 267; St. Louis v. O'Neil Lumber Co., 42 Mo.App. 586; Furlong v. Thomssen, 19 Mo.App. 364; Beal v. McVickers, 8 Mo.App. 202; Luthey v. Woods, 1 Mo.App. 167. (2) Salary of an employee of a municipal corporation, after same has been earned and become due may be reached at the instance of judgment creditors and subjected to his debts. Adams v. Tyler, 121 Mass. 380; Wilson v. Lewis, 18 R. I. 285; Wheaton v. Drake, 5 N.H. 13; Mayor v. Horton, 38 N. J. Law, 88; Newark v. Funk, 15 O. St. 462; Wales v. Muscatine, 4 Ia. 302; Waterbury v. Com. of Deer Lodge Co., 10 Mont. 515; Laredo v. Nally, 65 Tex. 359; Seymour v. School Dist., 53 Conn. 502; Speed v. Brown, 10 B. Monroe, 108; Thompson v. Nixon, 3 Edw. Ch. 457; McCann v. Dorsheimer, Clarke's Cas. 144; 5 Ency. of Pl. & Pr., p. 447, note.

BRACE P. J. Marshall, J., not sitting.

OPINION

BRACE, P. J.

At the December term, 1896, of the circuit court of the city of St. Louis the respondent recovered judgment against D. P. O'Brien for the sum of $ 124.10, bearing eight per cent per annum interest, on which execution was issued returnable to the April term, 1897, of said court, which execution at said term was returned nulla bona and wholly unsatisfied.

Afterwards on the 30th of June, 1897, the respondent instituted this suit against the said O'Brien and the city of St. Louis, reciting these facts, and charging in his petition for his cause of action that "defendant O'Brien is, and has been for a long time in the employ of the defendant city of St. Louis, in the office of its recorder of deeds, at a monthly salary of $ 125, that said O'Brien has now earned, by reason of said employment, and there is still due him and unpaid the sum of $ 125 for services performed as an employee of said city during the month of June, 1897; that said O'Brien is wholly insolvent, and has no property other than the amount of money due him from the city of St. Louis, as aforesaid, and the money which he may hereafter earn as such employee of said city, out of which plaintiff may make his judgment aforesaid, or upon which he can cause any process or execution to be levied, and plaintiff knows of no other person who is indebted to defendant, or whom he can cause to be summoned as garnishee of defendant," and praying that the city be required to pay the amount so due to said O'Brien to be applied on said judgment.

O'Brien made default, and the city demurred to the petition on the following grounds:

"First. The petition does not state facts sufficient to constitute a cause of action against this defendant.

"Second. There is no equity in the petition.

"Third. Public policy prohibits equitable garnishments against a municipal corporation, because the public interests would suffer by abstracting from their corporate duties the time and attention of the officers and occupying them in contests about which the corporation has no interest, and thereby there would be an interference with the city in the administration of its public governmental functions."

The demurrer was overruled, and the city standing on its demurrer, judgment was rendered against it for the said sum of $ 125, and the city appealed.

(1.) "In nearly all of the United States, statutes have been enacted, the usual purport of which is, that when an execution has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor and any other person to compel the discovery of anything in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust for him, and to procure satisfaction of the judgment out of such property." 5 Encyl. of Plead. & Prac., p. 415. The proceeding under these statutes may be called equitable garnishment, for the sake of brevity, and in order to distinguish it from ordinary garnishment, or trustee process. In Missouri we have not, and never have had, a statute of similar purport, our kindred statute being simply a bill of discovery against the debtor himself (R. S. 1889, sec. 4971, et seq.), leaving the judgment creditor to pursue his legal remedy against the property or thing in action disclosed. The legal remedy for such creditor when the property is a debt due from a third person to his debtor, is the statutory process of garnishment; from that process "municipal corporations" are by statute expressly exempted. [R. S. 1889, sec. 5220.]

This exemption was first incorporated in the statute in 1855. [R. S. 1855, p. 246, sec. 27.] Prior to that time, however, in Hawthorn v. St. Louis, 11 Mo. 59, decided in 1847, in which it was sought by an execution creditor to reach the salary of the recorder of the city, by garnishment, it was held that although private corporations may be proceeded against by garnishment, yet "the city of St. Louis is a public municipal corporation, created for the public benefit, and not subject to the same rules governing private corporations, such as banks, insurance companies and other similar corporations. It should not therefore be compelled to stand at the bar of all the courts in the State and participate in the judicial controversies carried on between debtors and creditors. While these contests would be going on, the public interests would suffer, by abstracting from their corporate duties the time and attention of the officers, and occupying them in contests about which the corporation had no interest. And however desirable it may be to creditors to enforce against the officers of the corporation their just demands, by the means resorted to in this case, yet we think that public policy forbids the imposition of such a liability upon the corporation."

In Fortune v. St. Louis, 23 Mo. 239, decided in 1856, the principle laid down in the Hawthorn case was adhered to, and it was again ruled that the city was not subject to garnishment. Apart from express legislative declaration to that effect, the doctrine that municipal corporations, on ground of public policy -- more fully set out in the cases cited in the brief of counsel for the appellant than in the Hawthorn case -- are not subject to statutory garnishment, though sometimes denied, had then, and has now the support of the great weight of authority.

After the policy of this State on the subject had been thus announced by this court in these two cases, and expressly declared by the legislature in the Revision of 1855, in Pendleton v. Perkins, 49 Mo. 565, decided in 1872, in an able and learned opinion written by Bliss, J., it was held, in the language of the syllabus, that, "Where a debtor has absconded so that judgment can not be obtained against him, and has no property in the State subject to attachment, but has money in the city treasury belonging to him, it may be reached by bill in equity, in the first instance, without a previous judgment at law, and without showing fraud or any other recognized ground of equitable jurisdiction; and the fact that cities are not liable under the statutory garnishment will not protect them from such proceeding in equity." And it is upon this decision that counsel for respondent rely in support of the judgment of the circuit court.

The conclusion thus broadly stated, was reached by three questions, all of which were answered in the affirmative. They are as follows: "1. Will a creditor's bill lie to subject a fund or chose in action of the debtor, without showing fraud or some other recognized ground of equitable jurisdiction? 2. Will it lie in favor of the plaintiff in this case without having first obtained judgment and issued execution? 3. Will it lie against the city?"

Answering the first, after a review of the authorities, it was said "The affirmation of the proposition that a judgment creditor, who has exhausted every ordinary means to satisfy his judgment, should have the aid of the court, in analogy to its ancient...