Kingman v. Banks

Citation251 S.W. 449,212 Mo. App. 202
Decision Date08 May 1923
Docket NumberNo. 17757.,17757.
PartiesKINGMAN v. BANKS (JEFFRIES, Garnishee).
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Suit by R. H. Kingman, Jr., doing business under the firm name of R. H. Kingman & Son, against Clifford W. Banks, doing business as C. W. Banks & Co., and Edwin H. Jeffries, garnishee. From a judgment in favor of the garnishee, plaintiff appeals. Affirmed.

Boyle & Priest and G. G. Vest, all of St. Louis, for appellant.

Albert Chandler, of St. Louis, for respondent.

NIPPER, C.

Plaintiff brings spit against defendant for certain goods sold and delivered by plaintiff to defendant. The petition is supported by an affidavit that defendant is a nonresident of the state of Missouri. Respondent was summoned as garnishee.

Plaintiff, in his reply to garnishee's answer, alleges that respondent occupied as tenant certain premises in St. Louis county which were held by Clifford W. Banks and wife; that at the time he was served with garnishment proceedings he was paying a rental of $40 per month to "either" defendant or his wife; that defendant is indebted to plaintiff. Plaintiff then seeks to have an order of court upon the garnishee to turn over this rent after the date on which summons and notice was served upon him.

Garnishee filed a motion to quash the attachment, on the ground that he is a tenant of property held by the defendant and his wife as tenants by the entirety, and, as such, the rents, issues, and profits ar not subject to levy or attachment for the individual debts of the husband alone. The court sustained the motion to quash, and entered judgment in favor of the garnishee, and plaintiff appeals.

There is some question about the proceedings to perfect the appeal being in proper form; but, in view of the conclusions we have reached, it is unnecessary to pass upon them, because it would in no way change the result. The plaintiff, who is appellant here, argues that the rents, issues, and profits of an estate by the entirety is subject to attachment for the husband's debts alone, and cites and relies solely upon the law as announced in Rezabek v. Rezabek, 196 Mo. App. 673, 192 S. W. 107. In that case this court followed the rule of law announced in Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, and Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 Atl. 695, 59 Am. Rep. 52. In New Jersey and New York it is held that the "Married Woman's Acts," in so far as they affect estates by the entirety, have made husband and wife tenants in common or joint tenants of the use, each being entitled to one-half of the rents and profits during their joint lives, with power to each to dispose of or change his or her moiety during such time. The opinion of this court, in Rezabek v. Rezabek, supra, Was rendered in February, 1917. In February, 1918, the Supreme Court, in Brewing Co. v. Sexy, 273 Mo. 150, 201 S. W. 67, L. R. A. 1918C, 1009,...

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