Kansas City v. Gough

• Decision Date: 05 March 1886
• Citation: 10 P. 89,35 Kan. 1
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, et al., v. W. M. GOUGH AND J. M. LINLEY, Partners as Gough & Linley

10 P. 89

35 Kan. 1

THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, et al., v. W. M. GOUGH AND J. M. LINLEY, Partners as Gough & Linley

Supreme Court of Kansas

March 5, 1886

Error from Atchison District Court.

ON March 7, 1884, W. M. Gough and J. M. Linley, partners as Gough & Linley, filed their bill of particulars against The Kansas City, St. Joseph & Council Bluffs Railroad Company, alleging that on January 23, 1883, they brought their action before a justice of the peace of Atchison county against Jesse Gaut for $ 20, and that in said action upon due proceedings certain money due to said Gaut was garnished in the hands of the railroad company; that on February 3, 1883 judgment was rendered in favor of the plaintiffs against said Gaut, by the justice, for $ 20, and costs of suit taxed at $ 11.85, of which were costs of the proceeding against the garnishee in the action; that on February 3, 1883, the railroad company filed its answer as garnishee and disclosed $ 20 due by it to said Jesse Gaut; that on February 15, 1883 an order was issued by the justice of the peace to the railroad company to pay the said $ 20 into court, to be applied upon the judgment against Gaut; that the order was served on the company, but has never been complied with; that on January 14, 1884, a second order was issued by the justice and served upon the railroad company to pay the money into court, which second order was likewise disobeyed; that the judgment in favor of plaintiffs against the said Gaut is in full force and wholly unpaid. Wherefore, the plaintiffs demanded judgment against the company for the sum of $ 20 and interest from February 15, 1883, and costs. Trial had before the justice on April 14, 1884, and judgment rendered in favor of plaintiffs for $ 25.94 and costs, taxed at. $ 5.80. The railroad company appealed the case to the district court. With leave of the court, Jesse Gaut was made a party and filed his answer, to which plaintiffs filed a reply. Trial had July 28, 1884, a jury being waived by the consent of the parties. The court made the following findings of fact:

"1. The plaintiffs are and for several years last past have been partners in business as physicians and surgeons at Atchison in Atchison county, Kansas; as such, during the year 1882 they rendered professional services to the family of Jesse Gaut, then residents of Atchison, Kansas, at the request of said Jesse Gaut; but prior to January, 1883, said Jesse Gaut and his family removed from Atchison, Kansas, to St. Joseph Missouri, where they have ever since lived and resided as their home.

"2. On January 23, 1883, the plaintiffs commenced an action against said Jesse Gaut before R. B. Drury, a justice of the peace of Atchison county, Kansas, to recover the sum of $ 20 for professional services of the plaintiffs, and at the same time they caused proceedings in garnishment to issue to said defendant railroad company as garnishee. On February 3, 1883, said railroad company answered as garnishee, to the effect that said Jesse Gaut, as an employe of the garnishee, had performed services for it ever since January 1, 1883, and had earned $ 20 for said services which would become due and payable February 15, 1883, and that said sum was for the last thirty days' wages of said Jesse Gaut as an employe of the garnishee; and at the same time said railroad company filed a verified motion for a discharge as garnishee, and the affidavit of said Jesse Gaut was also then and there filed, asking said wages be declared exempt to him. Neither the answer of the garnishee, the verified motion of the garnishee, nor the affidavit of said Jesse Gaut, showed that such wages or earnings of said Jesse Gaut were necessary for the maintenance or use of a family supported wholly or partly by his labor, and said fact was not in any other manner made to appear.

"On February 10, 1883, said Jesse Gaut appeared by his attorney in said action, who was also the attorney of said railroad company, and a trial was had, which resulted in a judgment in favor of the plaintiffs against said Jesse Gaut for $ 20 debt, and $ 8 costs. On February 15, 1883, the plaintiffs and said Jesse Gaut and said railroad company appeared, and said verified motion for discharge of garnishee came on to be heard, and the answer of said garnishee and said verified motion and said affidavit of Jesse Gaut, all filed February 3, 1883, as aforesaid; and also the exemption statutes of Missouri were presented to the justice, which was all of the evidence produced. And thereupon said justice overruled said motion for discharge of the garnishee and for declaring said money exempt, and made an order for the garnishee to pay said sum of $ 20 into the hands of said justice to apply upon said judgment and costs; to which rulings and orders said Jesse Gaut and said railroad company then and there duly excepted. On February 22, 1883, a bill of exceptions was duly allowed to said railroad company as garnishee, and signed, and filed by the justice. On January 14, 1884, said justice made another order for said railroad company as garnishee to pay in said money in satisfaction of said judgment and costs--the total costs to that time being taxed by the justice at $ 11.85. No part of said money has ever been paid in by the garnishee, and no part of said judgment or costs has ever been paid, and said judgment remains in full force and unsatisfied.

"3. Up to the time of the garnishment, January 23, 1883, the amount of wages earned by said Jesse Gaut was fully $ 20 for January, but at the end of the month his wages had amounted to $ 43.20, but the same was not payable until February 15, 1883. Before the time for answer of the garnishee, said Jesse Gaut notified said garnishee that he claimed said wages of $ 43.20 as exempt.

"4. Said railroad company as garnishee instituted proceedings in error in this court to reverse the order of the justice of the peace requiring the garnishee to pay said sum of $ 20 into the hands of said justice to apply on said judgment, but afterward said proceedings were dismissed by order of this court. No proceedings in error were ever instituted by said Jesse Gaut, and he supposed, until about Christmas-time, 1883, that said money had been so paid in accordance with said order of the justice of the peace. Said railroad company retained $ 20 out of the January earnings of the said Jesse Gaut, and paid him the balance; after this action was commenced said railroad company also retained $ 5 more out of his subsequent earnings, but did not explain to him and he did not know the reason for so doing. After the order of the justice of the peace was made, said Jesse Gaut did not desire any further litigation, but was willing that said sum of $ 20 should be applied toward the satisfaction of said judgment, and the defense of this action by said railroad company was made without the knowledge of said Jesse Gaut until about June, 1884, and it was at the solicitation of said railroad company that he consented to be made a party to this action in this court.

"5. On the trial of this action, the facts stated in conclusion of fact No. 1 were made to appear, and also the further facts that the plaintiffs' claim was for professional services as physicians; that the $ 20 garnished in said former action was for earnings of said Jesse Gaut for his personal services for said railroad company within less than three months next preceding the commencement of said garnishment proceedings, and that such earnings were and are necessary for the maintenance and use of the family of said Jesse Gaut, who were and are supported wholly by his labor."

Thereon the court made the following conclusion of...