Logan v. Goodwin

• Decision Date: 15 October 1900
• Docket Number: 1,387.
• Citation: 104 F. 490
• Parties: LOGAN v. GOODWIN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 490

LOGAN v. GOODWIN et al.

No. 1,387.

United States Court of Appeals, Eighth Circuit.

October 15, 1900

W. C Perry (Eugene Hagan and Daniel B. Holmes, on the brief), for plaintiff in error.

Edwin A. Austin (E. G. Wilson, on the brief), for defendants in error.

This writ of error assails a judgment in garnishment which was the result of the following proceedings: On April 23, 1897, F. G Logan, the plaintiff in error, commenced an action in the court below against A. G. Goodwin, W. L. Chamberlin, I Goodwin, and Grace C. Chamberlin, and filed an undertaking in garnishment, which recited that an order of garnishment had been issued, and which was conditioned to pay to the defendants, or any of them, any damages which they might sustain by reason thereof, if it should be determined that the order was wrongly obtained. This undertaking was filed in the court on April 23, 1897, and approved by the clerk. On September 13, 1897, an affidavit for garnishment was filed, to the effect that D. W. Mulvane had under his control property belonging to the defendants. A summons in garnishment issued, and was served upon Mulvane, who on October 8, 1897, filed an answer to the effect that he was in no manner and upon no account indebted or under liability to the defendants, unless by reason of $2,000 in his possession, obtained from the Bank of Topeka in payment of a certain certificate of deposit issued to I. Goodwin. On September 15, 1898, the court made an order, upon the motion of I. Goodwin, that she might give a bond, in pursuance of section 4299 of the General Statutes of Kansas of 1889, in the sum of $4,000, for the discontinuance and discharge of the garnishment proceedings, and that upon the giving of said bond, conditioned and secured as by law required, and its due approval by the clerk of the court, the garnishment proceedings should be discharged. On September 17, 1898, Imo Goodwin gave a bond conditioned that she and her surety would pay to the plaintiff the amount of any judgment which might be recovered against her in the action, not exceeding $4,000, and this bond was approved by the clerk of the court. On September 22, 1898, the court made an order that the funds in the hands of Mulvane should be released only upon the defendants' giving bond that in case judgment should be finally rendered against any of the defendants the money should be forthcoming and returned, to be applied on the judgment. On June 5, 1899, after a jury trial of the action, a judgment was rendered in favor of the plaintiff, Logan, and against the defendants A. G. Goodwin and W. L. Chamberlin, for the sum of $3,991.21 and costs, and in favor of the defendants I. Goodwin and Grace C. Chamberlin, and against the plaintiff, Logan, for their costs in the action. On June 10, 1899, an affidavit in garnishment was filed, alleging the recovery of the judgment, and that D. W. Mulvane had in his possession the sum of $2,000 in money, belonging to the defendants A. G. Goodwin and W. L. Chamberlin, or one of them. On the next day a proper undertaking in garnishment was filed and approved. A garnishee summons was issued and served, and on June 19, 1899, Mulvane made the same answer that he had made to the first garnishment. On the same day the attorneys for the plaintiff served upon him and filed a written notice that they elected to take issue on this answer. On June 22, 1899, the defendant Imo Goodwin moved for an order on the garnishee, Mulvane, that he should pay to her the $2,000 mentioned in his answer, and the plaintiff, Logan, sought to proceed with the trial of the issue raised by the two answers of the garnishee, Mulvane. In support of his right to a trial of the issue presented by the answer of October 8, 1897, he offered to prove that on October 14, 1897, he served upon the garnishee, Mulvane, a written notice that he elected to take issue with him upon his answer as garnishee as to his indebtedness to A. G. Goodwin, and that he would maintain his liability as garnishee in said action. The court refused to permit the plaintiff to introduce this evidence. The plaintiff excepted, and the court subsequently ordered that the garnishment process of June, 1899, be vacated and set aside, that the answer of the garnishee, Mulvane, filed October 8, 1897, stand as conclusive of the truth of the facts therein stated; that the garnishee, Mulvane pay over the money in his hands as shown by his answer to the defendant I. Goodwin; and that the plaintiff pay the costs of the garnishments. On January 9, 1900, the plaintiff, Logan, sued out a writ of error to reverse this judgment against him. The judgment between him and the defendants in the action is not in question in this court.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The garnishment proceedings in this case were taken and the rights of the parties were adjudicated in the court below under chapter 151 of the Laws of Kansas of 1889 (2 Gen.St.Kan. 1897, c. 95, Secs. 227-247). The two questions presented and decided in that court were: Does the service of a notice on the garnishee by the plaintiff that he elects to take issue on his answer, and will maintain him to be liable as garnishee, put the allegations of his answer at issue, and entitle the plaintiff to a trial of his action against the garnishee, under section 232? And is the plaintiff entitled to maintain garnishment proceedings upon a judgment or decree before the issue of an execution thereon, under section 228 of these statutes? Counsel for the defendants in error seek in this court to avoid a consideration of these questions upon various grounds, which are entitled to little consideration. They say that the judgment below should be sustained because the bond in garnishment filed in April, 1897, recited that an order of garnishment had already been issued, while the affidavit for garnishment had already been issued, while the affidavit for garnishment upon which the summons was issued was not filed until September 13, 1897. But the bond was approved by the clerk of the court, the garnishee summons was issued and served on the garnishee and the defendants, the case against the defendants was tried, and judgment was rendered against two of them, and the action between the plaintiff and the garnishee and the defendants then proceeded to judgment, without any objection or exception to the bond; and it is now too late for them to object to such judgment for the insufficiency of security, which the court could have permitted the plaintiff to remedy at any time, by giving a new or additional bond.

It is said that the judgment is right because the order of September 15, 1898, gave the defendant Imo Goodwin leave to file a bond, in pursuance of section 4299 of the Statutes of Kansas, and directed the discontinuance and discharge of the garnishment proceedings upon the giving of that bond. But the bond there given was conditioned only to pay to the plaintiff the amount of the judgment which might be recovered against the defendant Imo Goodwin, and it had no effect to discharge the garnishee from his liability on account of property or money in his control belonging to the other defendants in the action.

It is contended that the judgment in favor of the garnishee rendered on August 30, 1899, cannot be reviewed, because it was a part of the judgment against the defendants rendered on June 9, 1899, and the writ of error was not sued out until more than six months after the latter date. But section 238, c. 95, of the Statutes of Kansas provides that:

'The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant and all the provisions for enforcing judgment shall be applicable thereto; but where the garnishment is not in aid of an execution no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment the garnishee action shall be dismissed with costs.'

The action against the garnishee, therefore, was a separate civil action, which it was necessary to try at a different and subsequent time from that occupied by the trial of the main case against the defendants, and judgment in it was necessarily rendered at a later date. The plaintiff in error had a right to challenge the judgment against the garnishee by a writ of error within six months after its rendition, and he has done so.

It is said that the judgment in favor of the garnishee cannot be here reviewed, because it was not superseded under section 1007 of the Revised Statutes, and because the statutes of Kansas provide that a petition in error to review an order discharging or modifying an attachment or temporary injunction must be filed within 30 days after the date of the order, to prevent the latter from becoming operative. Gen. St. Kan. 1897, c. 95, Sec. 595. But the failure to supersede a judgment or to stay the process upon it, under section 1007 of the Revised Statutes, in no way affects the right of the plaintiff in error to a review of the proceedings which resulted in it, or to its reversal; and the statute of Kansas to which reference is made is not applicable to proceedings by writ of error or by appeal in the federal courts, because congress has established a complete system governing their action in that regard. Logan v. Goodwin (C.C.A.) 101 F. 654.

Finally it is contended that the plaintiff was not entitled to any garnishment proceeding under chapter 151 of the Laws of Kansas of 1889, because that chapter was not in force in 1873, when sections 915 and 916 of the Revised Statutes of the United States were last enacted. These sections read:

'Sec.

...