Grant v. Reed

• Decision Date: 03 May 1947
• Docket Number: 36835.
• Citation: 163 Kan. 105,179 P.2d 945
• Parties: GRANT v. REED et al.
• Court: Kansas Supreme Court

179 P.2d 945

163 Kan. 105

GRANT v. REED et al.

No. 36835.

Supreme Court of Kansas

May 3, 1947

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Action for recovery of money by Julia A. Grant against Lloyd M Reed, alias Floyd Russell, wherein Clarence E. Jones intervened, accompanied by a garnishment proceeding. From an adverse judgment, the defendant and intervening defendant appeal. On motion to dismiss appeal.

Motion denied.

Syllabus by the Court.

1. On appeal from an order refusing to discharge a garnishment a garnishee who has paid money into court pursuant to judicial fiat is a necessary party.

2. Ordinarily, in the absence of affirmative action on the part of an appellant, where necessary parties have not been joined on appeal an appeal will be dismissed but when the appealing party by motion invokes the provisions of G.S.1935, 60-3310 providing that a notice of appeal may be amended at any time by bringing in additional parties before the hearing, this court will permit the notice of appeal to be amended by bringing in an additional party, unless there be a showing that such failure will materially affect or unduly prejudice the appellee's rights with respect to the merits of the appeal.

Carl I Winsor, of Wichita (Harlin E. Bond and Rupert Teall, both of Wichita, on the brief), for appellants.

R. E. Gilchrist, of Wichita (A. M. Ebright, P. K. Smith and Harold Irwin, all of Wichita, on the brief), for appellee.

PARKER Justice.

In an action for the recovery of money accompanied by a garnishment proceeding judgment was rendered against the defendant debtor; and the garnishee, who had filed answer admitting he owed such defendant more than the amount of the judgment, was directed to pay the sum of $716.37 to the clerk of the court in satisfaction of the judgment and costs notwithstanding motions of the defendant and an intervening defendant to discharge the garnishment. The garnishee complied with the court's order. Thereupon, without making the garnishee a party, the judgment debtor and the intervenor each appealed from the portion of the judgment overruling their respective motions. Thereafter the appellee moved to dismiss the appeal on the ground the garnishee is a necessary party to appellate review of the trial court's action on such motions.

While the ultimate question for decision on this appeal will be whether the trial court erred in refusing to discharge the garnishment its determination is not now involved for the present issue is limited to the motion to dismiss the appeal. On that account the facts upon which the controversy depends are of no importance here and no attempt has been made to relate them in detail. What has heretofore been briefly stated is sufficient to present the general proposition of whether in this jurisdiction a garnishee, who has paid money into court pursuant to judicial mandate, is a necessary party to an appeal from a judgment refusing to release the funds so impounded.

Our statute (G.S. 1935, 60-3306) authorizing the taking of appeals to the supreme court by notice filed with the clerk of the trial court provides that a copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal.

In defining the meaning of the phrase 'all adverse parties whose rights are sought to be affected by the appeal', we held in Protzman v. Palmer, 155 Kan. 240, 124 P.2d 455, 456, that: 'An adverse party in a civil action on whom notice of appeal to the supreme court must be served (under G.S.1935, 60-3306), is a party to the litigation, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant.' (Syl. Par. 1).

We have often held that where a judgment against several defendants is brought to this court for appellate review and it appears that a modification or reversal of the judgment will affect a defendant who has not been made a party the appeal will be dismissed. A few of our many cases to that effect are, Protzman v. Palmer, supra, White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P.2d 1041; Loan Co. v. Chicago Lumber Co., 53 Kan. 677, 37 P. 132; Tuthill v. Moulton, 9 Kan.App. 434, 58 P. 1031.

See, also, Investment Co. v. First National Bank, 56 Kan. 49, 53, 42 P. 321, 323, where we said: '* * * The rule is that the absence of a party to a judgment who may be prejudicially affected by a modification or reversal is sufficient to defeat the jurisdiction of this court, and there can be no review of any part of the judgment. Loan Co. v. Chicago Lumber Co., 53 Kan. 677, 37 P. 132, and cases cited.'

At this point we deem it proper to note the wording of one of the sections of our statute authorizing the maintenance of garnishment proceedings. G.S.1935, 60-951, reads: 'The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto; * * *'.

That the language appearing in the foregoing quoted section means just what it imports, that a garnishment proceeding is separate and distinct from the main action even when instituted in conjunction therewith, and that the garnishee is a party to the garnishment action, is well established by our decisions. Cole v. Thacker, 158 Kan. 242, 146 P.2d 665; Stephens College v. Long, 156 Kan. 449, 451, 134 P.2d 625.

Appellee in support of its motion to dismiss relies upon but two decisions. They are Yerkes v. McGuire, 54 Kan. 614, 38 P. 781 and Stephens College v. Long, supra. These cases deal with situations where the garnishee had been discharged and the appeal was from the order of discharge. In each we held that where it is sought to reverse such an order the garnishee must be made a party and that in the event of failure to do so the appeal must be dismissed.

To the same effect, although not cited by appellee as authority, is Tuthill v. Moulton, 9 Kan.App. 434, 58 P. 1031. Such decision is particularly significant for the reason, that 9 Kan.App. at page 435, 58 P. at page 1032, in the opinion in commenting upon the legal status of garnishees in a garnishment proceeding, the court said: 'They are parties to the cause under the provisions of the act, and necessary parties in this court to give it jurisdiction to review the judgment.'

Appellants concede all our decisions hold the garnishee must be made a party to an appeal from an order discharging him from liability but insist they are not authority for holding he is a necessary party where it is sought to reverse a judgment upholding the garnishment under circumstances where a garnishee--as in the case at bar--has paid into court the money he admittedly owes the defendant. They point out we have never squarely held that in such a situation the garnishee must be made a party and direct our attention to a statement to be found 156 Kan. at page 451, 134 P.2d at page 626, of the opinion of Stephens College v. Long, supra, which reads: '* * * It might, perhaps, be contended that the garnishee would not be a necessary party to an appeal from an order directing him to pay over to the plaintiff funds in his hands belonging to the principal defendant. That would be on the theory that it is no real concern to him whether the plaintiff or defendant prevails and that pending the appeal the funds remain impounded. * * *'

We do not regard the language just quoted as authority for a contention the garnishee is not a necessary party under the circumstances here involved. The most that can be said for it is that it merely recognizes an argument to be advanced in support of such a contention without any indication as to the weight to be given it if and when presented in a proceeding depending on the present factual situation.

Next appellants rely on Reighart v. Harris, 5 Kan.App. 461, 49 P. 336, where it was held: 'A garnishee who has, by stipulation in the case, been released from the liability of having a judgment rendered against him, and [has been] converted by such stipulation into a mere stakeholder or custodian of funds, holding them subject to the order of the court, is not a necessary party to a petition in error to review an order discharging such funds so held by such garnishee from the lien of said garnishment.' (Syl. Par. 1).

They insist the foregoing decision is to be regarded as decisive of their position and claim the disinterestedness of the garnishee in the outcome of the present appeal is even greater than the disinterestedness of the garnishee there, in that there the garnishee had a stakeholder's interest in the...