Hartman v. Stark

• Decision Date: 08 March 1921
• Citation: 195 P. 1117,99 Or. 596
• Parties: HARTMAN ET AL. v. STARK.
• Court: Oregon Supreme Court

195 P. 1117

99 Or. 596

HARTMAN ET AL. v. STARK.

Supreme Court of Oregon

March 8, 1921

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Petition by J. L. Hartman and E. L. Thompson, doing business as Hartman & Thompson, against Kittie M. Stark, executrix, to enforce garnishment. From decree dismissing the petition petitioners appeal. Affirmed.

J. L Hartman and E. L. Thompson are partners, doing business under the firm name of Hartman & Thompson. November 22, 1918, the firm commenced an action in the circuit court of Multnomah county against W. T. Lambert, to recover the amount of his certain note, interest, and attorney's fees. An affidavit and bond for an attachment was duly filed, based upon which a writ was duly issued, directed to the sheriff of that county acting under which that officer served a garnishee notice upon Kittie M. Stark in person and as executrix of the estate of her deceased husband, commanding the garnishee to make answer and return of all property or moneys in her hands or under her control belonging to the defendant, Lambert. In response to such garnishee notice, she made answer that she had "no property rights or interests of said defendant in her possession or under her control."

April 19, 1919, judgment was rendered against the defendant Lambert, for the full amount of plaintiff's claim, in which it is recited that:

"It is further considered, ordered, and adjudged that the attachment and garnisheeing proceedings herein are hereby sustained and allowed, and that the plaintiffs may proceed against said garnishee as provided by law."

The plaintiffs not being satisfied with the answer of the garnishee, allegations and interrogatories were filed, in which it was alleged and claimed that Lambert was the owner of 40 shares of stock in the Union Laundry Company, evidenced by certificates Nos. 21 and 22, and that it was held by the garnishee as collateral security for a $2,500 loan. Answers were made to the interrogatories, in which the defendant admits that at one time she did hold those shares of stock as collateral, to secure a promissory note on which there was then due and owing $2,563.03; that upon the payment of that amount the stock was surrendered and delivered by her to one A. R. Ford. After judgment was rendered, nothing more was done in the circuit court, and the plaintiff then filed its original petition in the circuit court of Multnomah county in probate, setting out all the above facts, in which, among others, it is alleged:

"That the said garnishee, by virtue of taking said certificate of stock assigned to her as executrix and the surrender of her said note of $2,563.03, has attempted to put it beyond the jurisdiction and right of the circuit court to finally adjudicate the aforesaid case of J. L. Hartman and E. L. Thompson v. W. T. Lambert, Defendant, and Kittie M. Stark, Garnishee. That these said petitioners were standing ready and willing to pay into court the aforesaid sum of $2,563.03 and interest, and be subrogated to the rights of said estate to said stock in the Union Laundry Company."

The petitioner prays that the court make an order canceling the surrender of the stock of the Union Laundry Company, and that the executrix be required to deliver it into court to be dealt with as may be just and proper in the garnishment proceedings, on the receipt by her of $2,563.03 and interest, and for such other and further relief as may seem proper to the court. Based upon the petition, a citation was issued by the circuit court in probate, to Kittie M. Stark as executrix, requiring her to appear--

"in the circuit court of the state of Oregon, in the county of Multnomah, on the ______ day of June, 1919, at 10 o'clock a. m., then and there to show cause why you should not accept the money for which the 40 shares of stock held by you in the Union Laundry Company is held as collateral security, and why you should not surrender said property to the circuit court of Multnomah county, Or., to be dealt with by said court according to law, in the case of J. L. Hartman and E. L. Thompson, Plaintiffs, v. W. T. Lambert, Defendant, in which you had been served and have made answer as garnishee."

To this petition, on July 19, 1919, she appeared and filed a demurrer upon the grounds:

(1) "That this court has no jurisdiction of the subject-matter contained in said petition."

(2) That the petitioners "have no legal capacity to sue in this matter in this court and cause."

(3) That there is another action pending between the petitioners and Lambert and Kittie M. Stark, executrix, "as garnishee, in this court, on the law side."

(4) "That said petition does not state facts sufficient to constitute a cause of relief in this court and matter."

November 17, 1919, it was "ordered and decreed"...