Keys v. Smallwood
| Citation | 152 Kan. 115,102 P.2d 1001 |
| Decision Date | 08 June 1940 |
| Docket Number | 34764. |
| Parties | KEYS v. SMALLWOOD. |
| Court | United States State Supreme Court of Kansas |
Rehearing Denied July 3, 1940.
Syllabus by the Court.
A judgment cannot be set aside, modified or in any way affected after the term at which it was rendered, except as provided by the civil code.
Where during term at which judgment was entered for plaintiff in garnishment proceeding, no motion or order was made affecting the judgment, it could not thereafter be set aside and the money paid to clerk of court by garnishee directed to be paid to defendant on ground it was exempt as wages notwithstanding a second garnishment was pending at expiration of the term and that plaintiff had not yet received the money held by the clerk of court. Gen.St.1935 20-1032, 58-401.
1. Rule followed that a judgment cannot be set aside, modified or in anywise affected after the term at which it is rendered except as provided by the civil code.
2. A judgment creditor sought to realize upon it by garnishment. The garnishee admitted owing money to the judgment debtor and paid it into court. The judgment debtor ignored the proceeding. The court gave judgment directing the money to be paid to plaintiff to apply on the judgment indebtedness. Later, plaintiff caused a second garnishment to issue. The garnishee answered admitting that he then owed further moneys to the judgment debtor. The judgment debtor then claimed that the garnished money was for wages which he needed to support his family. Nothing was done nor attempted to set aside the prior judgment on the first garnishment during the term at which it was rendered. Held that following the expiration of that term the judgment on the first garnishment was a finality and not subject to any further or different order of the court.
Appeal from District Court, Osage County; Robert T. Price, Judge.
Action by A. W. Keys against H. W. Smallwood, wherein plaintiff recovered judgment against defendant and instituted garnishment proceedings wherein judgment was entered for plaintiff. From a judgment at a subsequent term of court setting aside the garnishment judgment and directing that the moneys paid to the clerk of court by the garnishee be paid to defendant as being exempt wages, plaintiff appeals.
Judgment reversed and cause remanded with instructions to reinstate the garnishment judgment.
Douglas Hudson, Howard Hudson, and Douglas Hudson, Jr., all of Fort Scott, for appellant.
Harry W. Fisher, of Fort Scott, and Alex Hotchkiss, of Lyndon, for appellee.
This is an appeal from a judgment in garnishment proceedings.
The plaintiff, A. W. Keys, recovered judgment for $405.15 and costs against defendant, H. A. Smallwood, upon an agreement between them that each would pay half the medical, hospital and funeral expenses incident to the death of plaintiff's son caused by the negligent discharge of a shotgun carried by defendant's son. Touching the binding force of that judgment there is no controversy. The present action has to do with plaintiff's efforts to realize upon it.
On July 27, 1939, an affidavit for garnishment was filed in the district court reciting the facts of the judgment indebtedness owed by defendant, that execution issued thereon had been unsatisfied, and that affiant believed that the garnishee, Guy A. Thompson, Trustee and Receiver of the Missouri Pacific Railroad Company, was indebted to Smallwood the judgment debtor.
Pursuant thereto, on July 28, 1939, the court ordered the garnishee to appear and answer touching any indebtedness owed by him to the judgment debtor. On the same day a certified copy of this order was duly served on Smallwood and his attorney. Answer day was set for September 8, 1939.
On August 30, 1939, the garnishee answered admitting that he owed Smallwood $220.69, which the garnishee was holding subject to the order of the court. Smallwood, the judgment debtor, filed no pleading in opposition to the garnishee's answer; and on September 8, 1939, Keys the garnisher orally moved that the garnishee be directed to pay the sum of $220.69, due by him to Smallwood, to apply on the judgment indebtedness owed by the latter to Keys, the judgment creditor.
The trial court sustained that motion. The pertinent journal entry of judgment, in part, reads:
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...... Code."' (Citing many cases) (140 Kan. pages 570,. 571, 37 P.2d page 1016). . . . In. Keys v. Smallwood, 152 Kan. 115, 117, 102 P.2d 1001,. 1002, reaffirming the rule just announced, it was said:. "From this order and judgment the ......
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...provided in the civil code (Heston v. Finley, 118 Kan. 717, 236 P. 841; Drury v. Drury, 141 Kan. 511, 41 P.2d 1032; and Keys v. Smallwood, 152 Kan. 115, 102 P.2d 1001); (2) that a judgment of divorce settles all the property rights and obligations of the parties to each other after the divo......
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...indicated its view as to when a term of court expires under statutory provisions similar to those here involved. See Keys v. Smallwood, 152 Kan. 115, 117, 102 P.2d 1001; Hoffman v. Hoffman, supra, 156 Kan. at page 650, 135 P.2d 887; Buchanan v. Lambdin, supra, 176 Kan. at pages 63 & 64, 269......
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