Kilroy v. Briggs

• Decision Date: 28 January 1918
• Citation: 200 S.W. 436,198 Mo.App. 240
• Parties: M. J. KILROY, Respondent, v. FRANK BRIGGS, Defendant GALVESTON, H. & S. A. RAILWAY COMPANY, Garnishee, Appellant
• Court: Kansas Court of Appeals

200 S.W. 436

198 Mo.App. 240

M. J. KILROY, Respondent, v. FRANK BRIGGS, Defendant

GALVESTON, H. & S. A. RAILWAY COMPANY, Garnishee, Appellant

Court of Appeals of Missouri, Kansas City

January 28, 1918

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

REVERSED.

Judgment reversed.

Watson Gage & Watson for appellant.

M. J Kilroy for respondent.

OPINION

ELLISON, P. J.

This is an action against defendant begun before a justice of the peace to enforce the lien of a boarding house keeper for $ 37.50, as given by sections 8247, 8248, Revised Statutes 1909. An attachment, in aid, was issued and the garnishee railway company was summoned to answer what, if anything, it owed defendant. It answered that it owed him $ 74 for wages earned in its employ. Defendant resided in the State of Texas and he was notified by order of publication. Judgment was rendered against him before the justice by default for the amount of plaintiff's claim. Judgment was also rendered against the garnishee for same amount. The garnishee appealed to the circuit court, but defendant did not. In the latter court judgment was rendered for plaintiff against the garnishee and the latter appealed to this court.

It is provided in section 1 of the Laws of 1911, page 141, that no wages shall be attached before personal service is had upon the debtor defendant "unless the suit be brought in the county where the defendant resides, or in the county where the debt was contracted and the cause of action accrued." It is also provided in such statute that the "writ or summons of attachment or garnishment shall affirmatively show the place where the defendant resides and the place where the debt is contracted and the cause of action arose."

The present case fails to meet these requirements. [Music Co. v Sage, 184 Mo.App. 340, 171 S.W. 672.] The suit was not brought in the county where defendant resided, for it is alleged that he lived in Texas, nor is there anything to show that the cause of action accrued in Jackson county where the action was instituted. It is alleged that plaintiff's assignor is a boarding house keeper, and a resident of Jackson county, but nowhere is it stated that the board bill was made in that county. Plaintiff could well have resided in Missouri and kept a boarding house in the nearby State of Kansas and the bill be contracted in that State; and the averment would have covered such state of facts. In an effort to meet the objections noted, plaintiff added at the foot of the statement this allegation: "Debt herein accrued in Missouri and is owing to a bona fide resident of Missouri. Defendant resides in Texas." This does not cure the defect. A statement that the debt accrued in Missouri is not a statement that it accrued in Jackson county...