Kansas Sand & Concrete, Inc. v. Lewis, 53806

• Decision Date: 02 September 1982
• Docket Number: No. 53806,53806
• Citation: 8 Kan.App.2d 91,650 P.2d 718
• Parties: KANSAS SAND & CONCRETE, INC., Plaintiff-Appellant, v. Wayne A. & Lila L. LEWIS dba Lewis Septic Tank, Defendants, v. CITY OF TOPEKA, Garnishee-Appellee.
• Court: Kansas Court of Appeals

Page 718

650 P.2d 718

8 Kan.App.2d 91

KANSAS SAND & CONCRETE, INC., Plaintiff-Appellant, v. Wayne A. & Lila L. LEWIS dba Lewis Septic Tank, Defendants, v. CITY OF TOPEKA, Garnishee-Appellee.

No. 53806.

Court of Appeals of Kansas.

Sept. 2, 1982.

Syllabus by the Court

1. Where garnishment proceedings are properly instituted in district court and the garnishee then files its answer denying liability, and within twenty days thereafter the plaintiff does not serve upon the garnishee a notice in writing that it elects to take issue upon the answer of the garnishee, the answer is conclusive of the facts stated, and such facts stand as true.

2. After the expiration of the twenty days within which the plaintiff has to take issue with the garnishee's answer, a trial court may, at its discretion and pursuant to K.S.A. 60-206(b ), allow a late reply by the plaintiff only upon motion and notice, and only where the failure to reply within the twenty days was the result of excusable neglect.

3. In an action where garnishment proceedings were properly instituted, a garnishment order issued, the garnishee answered denying liability, and no reply by the plaintiff was made within twenty days, it is held: The plaintiff is precluded from testing the sufficiency of the garnishee's answer since the plaintiff's reply was not made within the statutory period and no motion, notice or showing of excusable neglect was made to support the trial court's enlargement of the statutory twenty day period.

4. The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.

Ralph L. Larson, Topeka, for plaintiff-appellant.

Douglas S. Wright, Deputy City Atty., Topeka, for garnishee-appellee.

Before SWINEHART, P.J., and SPENCER and MEYER, JJ.

SWINEHART, Judge:

This is an appeal by plaintiff-garnisher Kansas Sand & Concrete, Inc., from the judgment of the district court of Shawnee County in a garnishment proceeding finding that garnishee City of Topeka was not liable for paying out to defendants Wayne A. and Lila L. Lewis dba Lewis Septic Tank money which was being sought through garnishment. The following issues have been raised on appeal: (1) whether the trial court erred in finding that the garnishee's payout of money was properly made; and (2) whether plaintiff's reply controverting the garnishee's answer was filed in a timely manner.

On August 5, 1980, plaintiff Kansas Sand & Concrete, Inc., obtained a judgment against defendants, Wayne A. and Lila L. Lewis, dba Lewis Septic Tank, in the amount of $912.76. On February 17, 1981, garnishee City of Topeka entered into contract No. 12154 with Wayne A. Lewis for excavating work to be performed by Lewis for the sum of $2,770. On February 24, 1981, plaintiff requested a garnishment order be served upon the garnishee City and said order was issued on the same date. The City answered the order on February 26, 1981, stating:

"(1) Money or Indebtedness Due. I DO NOT HOLD money or am indebted to said defendant, other than for earnings due and owing defendant, as of the date of this answer, in the following manner and amounts, towit: Work completed, and monies due are for LEWIS EXCAVATION COMPANY, AND NOT LEWIS SEPTIC TANK INC., EMPLOYEE AND NOT INTENDED DEFENDANT. Wayne A. Lewis, is an employee of Lewis Excavation, and not the manager, and or owner. No garnishment action is taken on this garnishment."

The City held city warrant check No. 29521 in the amount of $1,266 made payable to Lewis Excavation. The check was paid to Lewis on February 26, 1981. Apparently Wayne Lewis had gone to the city auditor's office upon receiving notice of the garnishment and explained that the contract with the City was with Lewis Excavation, and that he was an employee of that company and no longer operating as Lewis Septic Tank. The excavation company, according to a January 15, 1981, affidavit, was operated by Jacqueline Lewis. That affidavit states:

"On this 15th day of January 1981 I Jacqueline Lewis will be establishing an excavation company to be known as Lewis Excavation Company. I will be the sole owner of this company and plan to incorporate in the very near future. Until I understand all the aspects of the excavation bussiness [sic], Wayne Lewis will be an employee of my company with the posistion [sic] of company supervisor to more or less run my business until I become capable to operate it myself. He will be paid the amount of $4.00 per hour. Listed below are his duties:

"(1) Wayne is in charge to estimate and bid jobs for me with the provision that I approve all bids

"(2) he is authorized to sign his name to any contracts for my company

"(3) he is authorized to sign his name to any checks or vouchers due my company for work performed, but any and all monies must be turned over to me "(4) Wayne will use in my company a John Deere 310 backhoe supplied to him by Alfred Lewis and until I incorporate, Wayne will be responsible to obtain any and all insurances he may need to perform his work

"(5) with my approval Wayne is authorized to hire and pay any sub-contractors he made [sic] need to perform a job with the condition that I receive receipts showing the amounts and dates the subs were paid

"(6) in the event that a condition arises that is not covered here, Wayne must have my approval first before going any further."

On March 11, 1981, plaintiff requested that a second garnishment order be served upon the City of Topeka. On March 31, 1981, defendant filed a response to contest the garnishment. The response refers to a city warrant check No. 30558 for $1,233 and mentions a February 27, 1981, order of garnishment. Nowhere in the record is there a reference to that check or that order. Defendant also sets out his position that he is employed by Jacqueline Lewis d/b/a Lewis Excavation and that the City's contract is with Lewis Excavation.

On April 3, 1981, the City filed its answer to the March 11 garnishment order. It stated:

"(1) Money or Indebtedness Due. I hold money or am indebted to said defendant, other than for earnings due and owing defendant, as of the date of this answer, in the following manner and amounts, to-wit: City of Topeka Warrant Check Number 32157 Dated April 2, 1981 in the amount of $277.00 for services rendered to the Community Development Department."

On April 27, 1981, plaintiff made a motion to the court for a judgment against the City for its failure to withhold money belonging to defendant which should have been turned over in the garnishment.

On May 13, 1981, the City made a motion to the court for an order discharging it as garnishee and seeking attorney fees.

On May 21, 1981, plaintiff filed a document entitled "Answer" wherein plaintiff replied to the City's original garnishment answer seeking to hold the City liable for paying out money to defendant in violation of the garnishment order. At the bottom of the document, a district court judge had signed the following statement: "Motion to file out of time allowed this 11 day of May, 1981." In the appendix of the City's brief on appeal, a similar document entitled "Reply" is found, only the allowance for filing out of time is unsigned. This document does not appear in the record on appeal.

On August 24, 1981, the court held a hearing on the various pending motions. The court held that the City operated in good faith in paying out $1,400 to the excavation company and found that it was not the duty of the City to find out whether the excavation company was the septic tank company or whether it should have been Wayne A. Lewis. The court denied the challenge to the payout and found that it was properly made. The court also found that the answer of the City was correct according to the knowledge that was available to the City at the time it was made.

Plaintiff appeals and contends that the trial court erred in finding that the garnishee's payout of money to defendant was properly made. Plaintiff maintains that the City's answer to the second garnishment order clearly mandates that its answer to the first garnishment was incorrect, given the fact that the contract between defendant and the City has remained the same. In other words, at the time of the City's first answer, the City was holding money for defendant and that money should have been attached by the garnishment order and paid to plaintiff per the order. Plaintiff argues that the City's mistake of fact concerning the ownership of the money does not relieve the City from liability for paying out the money contrary to the court's order of garnishment.

K.S.A. 1981 Supp. 60-717(c ) provides in part:

"An order of garnishment issued for the purpose of attaching any property, funds credits or other indebtedness belonging to or owing the defendant, other than earnings, shall have...