Kansas & Texas Coal Co. v. Adams
| Decision Date | 27 April 1903 |
| Parties | KANSAS & TEXAS COAL COMPANY, Plaintiff, v. JOSHUA A. ADAMS et al., Respondents; MILAM & MILLER, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
W. W Cox and Guthrie & Franklin for appellants.
(1) There was no equity in plaintiff's bill. The matters therein set up could have been pleaded in the company's answer in the garnishment either originally or by supplemental answer or amendment. They could have been shown on the trial by Adams and Matthews & Company just as they were on the trial of this cause. The remedy was ample at law and the appellants would have been entitled to a jury on the issues. The court, therefore, had no jurisdiction as the remedy was ample and direct at law. Secs. 3459 and 3473, R S. 1899; Humphrey v. Milling Co., 98 Mo. 542; Sec 2541, R. S. 1897; Benton County v. Morgan, 163 Mo. 661; Bank v. Packing Co., 138 Mo. 59. (2) The assignment is for the whole judgment with a secret understanding that the excess is to be paid back. It is for the use and benefit of the assignor. The large excess makes it void. Implement Co. v. Jones, 143 Mo. 253; State ex rel. v. Hardware Co., 147 Mo. 366; Grocer Co. v. Carlson, 67 Mo.App. 179.
R. S. Matthews, Otho F. Matthews and Robt. W. Barrow for respondent.
(1) There was no such garnishment on the Kansas & Texas Coal Company as would bring the Kansas & Texas Coal Company into justice court. Nothing is said or done to the Kansas & Texas Coal Company but delivering to R. W. Vail a copy of the summons. Sec. 388, R. S. 1899; Norvell v. Porter, 62 Mo. 309; Fletcher v. Wear, 81 Mo. 524; Dunn v. Railroad, 45 Mo.App. 29. (2) If garnishee is not legally served the proceedings are void. Fletcher v. Wear, 81 Mo. 524. (3) If garnishee is not served according to law, the appearance of garnishee in court confers no jurisdiction on the court that will in any way affect a third party. A garnishment proceeding is in its nature a proceeding in rem. Huffman v. Sisk, 62 Mo.App. 402; Norvell v. Porter, 62 Mo. 309; Dunn v. Railroad, 45 Mo.App. 29; Gates v. Tuesten, 89 Mo. 13. (4) A garnishment, even if in due form and with proper service, under the statutes is void if a fieri facias has not first been issued. Sec. 3434, R. S. 1899. The garnishment is void because not supported by an execution. The service of summons to garnishee should be returned and indorsed on back of summons. Hackett v. Gihl, 63 Mo.App. 447. (5) "Before any execution shall be delivered, the justice shall state in his docket, and also on the back of the execution, an account of the debt, damages and costs." If said entries are not made the execution is void. Huffman v. Sisk, 62 Mo.App. 401, and cases cited. Brown v. Woody, 64 Mo. 547; Gates v. Tuesten, 89 Mo. 14. (6) The execution is the foundation of a garnishment; as in this case. The foundation is a nullity--it follows that the garnishment is a nullity.
--It appears from the record in this case that Adams--the respondent here--entered into a contract with Matthews & Matthews and Barrow, who were attorneys, whereby they agreed to bring and prosecute an action for him against the Kansas & Texas Coal Company--hereafter referred to as the coal company--to recover damages for personal injuries sustained by him on account of the negligence of said coal company, and that they were to receive as a compensation for their services forty per cent of whatever amount they succeeded in recovering. Accordingly, the action was brought and on April 19, 1899, a judgment for five hundred dollars was recovered. On May 1, 1899, Adams made a formal assignment of the judgment on the margin of the record thereof to his attorneys, the two Matthews and Barrow. On April 26, 1899, Milam & Miller, appellants, caused the coal company to be garnisheed on an execution which had been issued on a judgment recovered by them before a justice of the peace against Adams. On December 13, 1900, a judgment was given by the justice against the garnishee coal company, from which it took an appeal. About this time the assignors of the Adams judgment wrote to the attorney of the coal company notifying him of the assignment of the judgment to them. The coal company thereupon brought a suit in equity against Adams, the assignees of the judgment and Milam & Miller and in the petition the facts relating to the two litigations were alleged to be substantially as has been hereinbefore stated by us, coupled with the further allegation that the coal company was placed in a position where it could not safely pay any or all of the defendants, or any of said judgment, and was in danger of suffering great loss and injury if it undertook to determine for itself where the right of the matter was; that is to say, to which of the defendants payment should be made; that it was threatened with the issue of execution on each of said judgments against it, and that it had no adequate remedy at law; and it therefore prayed to be permitted to pay the $ 500 with interest into the registry of the court, and that process issue against each of the defendants requiring them to interplead so as to determine where the right to said fund rested; and that a temporary injunction issue (1) against defendant Adams to restrain the issue of an execution on his judgment against plaintiff; (2) against defendant Matthews to restrain him from asserting any claim under said judgment by reason of the assignment thereof; and (3) against Milam & Miller to restrain them from issuing an execution on the justice's judgment, and from proceeding with said cause in the circuit court.
On January 17, 1901, pursuant to notice, the defendants appeared before the judge of the circuit court during vacation and upon the hearing of the petition a temporary injunction was awarded. Each of the defendants filed an interplea.
The defendants Milam & Miller in their separate interplea alleged (1) that they recovered a judgment before a justice of the peace against Adams for $ 92, and that on April 18, 1899, they caused an execution to be issued thereon which was put in the hands of a constable, who, on April 26, 1899, attached in the hands of the coal company all debts due from it to said Adams, and especially said $ 500 judgment; (2) that subsequently, on December 13, 1900, judgment was given in favor of defendants herein against said garnishee coal company. The defendants further alleged they had a prior lien on said $ 500 judgment over and above the assignees thereof, the two Matthews and Barrow, and that the assignment under which the latter claim was made only to secure to them a certain per cent thereof as fees, and that said assignment, therefore, operated as and was a fraud upon the defendants, whether so intended or not, as it served to hinder, delay and defraud them in collecting their said debt, and so said assignment as to them was fraudulent and void since it was excessive and covered up, concealed and removed from the ordinary process of law the property of Adams. Wherefore, they prayed that the court direct that the proceeds of the said $ 500 judgment be first applied to the satisfaction of their justice's judgment, etc.
In the interplea and motion to dissolve filed by the two Matthews and Barrow, they alleged the facts to be as stated by us at the outset in respect to their contract with Adams for the bringing and prosecution of the suit against the coal company, and the payment of the forty per cent of the amount recovered; the subsequent assignment of the judgment to them, and that they were the rightful legal holders of the said judgment. It was also therein further alleged that after the payment of the amount due them under said contract of assignment that the balance remaining would be due defendant Adams. It was also therein still further alleged that the said garnishment proceedings against the coal company in the justice's judgment was void and inoperative.
The interpleas were all controverted by separate replications. In that of Milam & Miller to the interplea of Adams it is charged that the assignment by Adams to his attorneys was fraudulently made to hinder, delay and defraud the creditors of Adams, and especially them, the said Milam & Miller, and that the assignment of the entire judgment when only forty per cent was owing the assignees, rendered it fraudulent and void.
The court heard the proof offered under the various issues made by the pleadings in the interplea proceedings and found ...
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