Kansas City Railways Company v. McCardle

• Decision Date: 06 June 1921
• Citation: 232 S.W. 464,288 Mo. 354
• Parties: KANSAS CITY RAILWAYS COMPANY et al., Appellants, v. BATTLE McCARDLE and BENTLY CLOTHING COMPANY
• Court: Missouri Supreme Court

232 S.W. 464

288 Mo. 354

KANSAS CITY RAILWAYS COMPANY et al., Appellants, v. BATTLE McCARDLE and BENTLY CLOTHING COMPANY

Supreme Court of Missouri, First Division

June 6, 1921

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Affirmed.

C. E Cooley for appellants.

(1) The petition sets forth facts sufficient to constitute in equity a cause of equitable relief in favor of both appellants, and against both respondents. (a) An injunction will lie at the suit of a resident of this State, who is entitled to exemptions under its laws, to restrain another resident of the State from prosecuting a suit by attachment, in a foreign jurisdiction, where the purpose and effect of such suit is to evade the exemption laws of this State and deprive such resident of his exemptions under the laws of this State. Hardware & Mfg. Co. v. Lang & Co., 54 Mo.App. 147; Ry. Co. v. Siefert, 41 Mo.App. 35; Kelly v Siefert, 71 Mo.App. 143; Fielder v. Jessup, 24 Mo.App. 91; Todd v. Mo. Pac. Ry. Co., 33 Mo.App 110; Keyser v. Rice, 47 Md. 208, 28 Am. St. 448; Dehon v. Foster, 4 Allen (Mass.) 545; 2 Freeman on Executions (3 Ed.), p. 1076; Cole v. Cunningham, 133 U.S. 107; Allen v. Buchanan, 97 Ala. 187, 38 Am. St. 187; Griggs v. Docter, 89 Wis. 161, 46 Am. St. 824. (b) The interests of the garnishee, and of the defendant in a garnishment proceeding, in the object of the suit, are so interrelated as to enable such garnishee to join in a suit with such defendant to enjoin a resident of the same jurisdiction as such garnishee and defendant, from proceeding by attachment in the courts of a foreign jurisdiction, for the purpose of depriving such defendant of the exemptions allowed him by the laws of the domicile of the parties, especially where the purpose and effect of such proceeding is to harass and annoy garnishee and defendant. Ry. Co. v. Siefert, 41 Mo.App. 35; 16 Cyc. 184; Fletcher v. Wear, 81 Mo. 532; Story on Equity Pleading (10 Ed.), 85. (c) If the garnishee may join with an individual employee in asking an injunction restraining the institution or prosecution of a garnishment proceeding in a foreign jurisdiction, where all the parties are residents of this jurisdiction, and where the purpose of such proceeding is to deprive the employee of his exemption rights, then such garnishee, joined with one or more employees, is entitled to such relief on behalf of all other employees similarly situated. 1 Beach on Injunctions, p. 372, sec. 365; 22 Cyc. 912; Ry. Co. v. Siefert, 41 Mo.App. 35; Savings Inst. v. Collonious, 63 Mo. 295. (2) The petition is not demurrable on the ground of multifariousness or misjoinder of causes of action. (a) As to plaintiffs: R. S. 1909, sec. 1731; 16 Cyc. 184; Bobb v. Bobb, 76 Mo. 419; Breimeyer v. Star Bottling Co., 136 Mo.App. 84; 16 Cyc. 248, 6b. (b) As to defendants: Bobb v. Bobb, 76 Mo. 419; Perkins v. Baer, 95 Mo.App. 70. (3) There are no valid constitutional objections to the jurisdiction of the courts of this State to grant the relief prayed in appellants' petition. Hardware & Mfg. Co. v. Lang, 54 Mo.App. 147; Cole v. Cunningham, 133 U.S. 103; Dehon v. Foster, 4 Allen (Mass.) 545; Keyser v. Rice, 47 Md. 203, 28 Am. St. 448; Towne v. Bowers, 81 Mo. 496.

Battle McCardle for respondent.

(1) Demurrer was properly sustained. The suit was not filed in the name of the real party in interest. Sec. 1729, R. S. 1909. The Kansas City Railways Co. had no interest in the exemption from garnishment of any wages due its employees. The right to claim such exemption was a privilege personal and peculiar to such employees. It could not be assigned, and it could not be exercised by the employer, the Kansas City Railways Company. Howland v. Railroad, 134 Mo. 474; Osburn v. Schutt, 67 Mo. 712; Wabash R. R. Co. v. Bowring, 103 Mo.App. 164; Holmes v. Corbin, 20 Mo.App. 507; Dinkins v. Cruden-Martin Co., 99 Mo.App. 310. (2) The mere fact that the Kansas City Railways Company was called upon to answer a summons in garnishment in Kansas instead of Missouri constituted no grievance. Petition showed no fraud upon the railway, and no added hardship in calling upon it to appear in court in Kansas, where it operated a road, had offices and was licensed to do business. Petition contained no charge that under law it was not liable to be summoned legally in Kansas. Under such a state of facts our courts have refused to interfere by injunction. Hardware & Mfg. Co. v. Lang, 54 Mo.App. 147, 127 Mo. 142. (3) Before Allen C. Campbell was made a party plaintiff, demurrer should have been sustained. Clearly several causes of action were then united improperly. After he became a party plaintiff the same several causes of action continued united improperly. All causes of action that may be united must "all belong to one of these classes and affect all the parties to the action." Sec. 1759, R. S. 1909; Beattie v. Gerardi, 166 Mo.App. 143. (4) Cause of action filed originally in favor of the Kansas City Railways Company could not be amended by making Campbell a party plaintiff. The cause of action was not joint. The first petition was bad, and the only effect of adding a party plaintiff was to substitute Campbell for the Railways Company. The code permits amendment, but not where the cause of action is changed, nor where one cause is substituted for another. Courtney v. Sheehy, 38 Mo.App. 290; Jordan v. Railroad, 105 Mo.App. 446; Hall v. School District, 36 Mo.App. 21; Scoville v. Glasner, 79 Mo. 449. No privity of relationship was shown to exist between the Railways Company and Campbell or other employees. That such privity exists is a necessary condition precedent to the maintenance of a joint action. (5) Petition was lacking wholly in equity. If it possessed any equity it was difficult to find the same, hidden as it must have been in the evident multifariousness of the petition. (6) Petition sought to reach all persons who at any time in the future, now unknown and unnamed, might be represented by defendant McCardle. This relief, if granted, would amount to a partial disbarment of defendant McCardle from practicing law; a result that cannot be effected by injunction.

JAMES T. BLAIR, J. Graves, J., concurs in separate opinion.

OPINION

JAMES T. BLAIR, J.

This is an appeal from a judgment for defendants upon plaintiffs' failure to plead over after the trial court sustained a demurrer to the following petition:

"Come now plaintiff above named, and for their cause of action against the defendants above named, state: that plaintiff Kansas City Railways Company is a corporation duly organized according to law, operating a street railway system in the cities of Kansas City, in the State of Missouri, and vicinity, and in Kansas City, in the State of Kansas, and vicinity, and as such employs a large number of men in its business; that plaintiff Allen C. Campbell is an employee of said Kansas City Railways Company; that the defendant Bentley Clothing Company is a corporation organized and existing under the laws of Missouri, and doing a credit clothing business in Kansas City, Missouri; that defendant Battle McCardle is an attorney, operating a collection office in Kansas City, Missouri, collecting bills for a large number of credit houses located in Kansas City, Missouri.

"It is provided by the laws of Missouri (Revised Statutes of 1909, sec. 2180, 2183 and 2415) that this plaintiff, or any employer, cannot be charged as garnishee for more than ten per cent of any wages due from him to a defendant in its employ for the last thirty days' service, where the defendant and employee is a resident of the State of Missouri, a married man or at the head of a a family.

"The defendant Battle McCardle, who is a resident of the State of Missouri, and has his office in Kansas City, Missouri, has at times numerous accounts for collection against employees of this plaintiff. For the purpose of harassing and annoying this plaintiff, Kansas City Railways Company, and for the purpose of depriving the employees or said plaintiff of the benefit of the exemptions allowed them by the laws of the State of Missouri, as aforesaid, said McCardle has been in the habit of instituting numerous proceedings upon said claims against employees of said plaintiff in the courts of the State of Kansas, causing plaintiff to be summoned as garnishee on account of the wages due from it to said employees, and refusing to allow said employees the exemptions to which they are entitled under the laws of Missouri; said McCardle is continuing to so institute such proceedings in foreign jurisdictions, and to harass this plaintiff and its said employees, and plaintiff Allen C Campbell, and threatens to continue so to do.

"Defendant McCardle represents numerous credit houses, among them the defendant Bentley Clothing Company. Plaintiff alleges that among the numerous claims upon which defendant McCardle has so instituted proceedings in foreign jurisdictions against employees of plaintiff Kansas City Railways Company is one of the defendant Bentley Clothing Company against one Allen C Campbell, one of the above named plaintiffs, who is a resident of the State of Missouri, a married man and at the head of a family, and as such is entitled to the exemptions allowed him by the laws of Missouri; that proceeding upon said claim of defendant Bentley Clothing Company, defendant McCardle, as its attorney and agent, has caused suit to be instituted thereon against said Allen C. Campbell in the State of Kansas, and has caused this plaintiff Kansas City Railways Company to be summoned as garnishee therein, to appear and answer touching the amount due said Campbell for wages earned by him as such employee of the said plaintiff, for the last thirty days' service, for the purpose and with the view of...