Marx v. Hart

• Decision Date: 17 December 1901
• Citation: 166 Mo. 503,66 S.W. 260
• Court: Missouri Supreme Court
• Parties: MARX et al. v. HART (HARKNESS et al. Garnishees).<SMALL><SUP>1</SUP></SMALL>

66 S.W. 260

166 Mo. 503

MARX et al. v. HART (HARKNESS et al. Garnishees).¹

Supreme Court of Missouri, Division No. 2.

December 17, 1901.

GARNISHMENT — SERVICE OF PROCESS — JURISDICTION — APPEAL BY GARNISHEE — BANKRUPTCY — DISCHARGE OF PRINCIPAL DEBTOR — CONSTITUTIONAL LAW — STATUTES — RETROSPECTIVE OPERATION — CONSTITUTIONAL QUESTION — JURISDICTION.

1. Acts 1891, p. 170, provides that mortgages or pledges of personal property shall be invalid when it appears that the pledgee has received or exacted usurious interest; and Const. art. 2, § 15, forbids the passage of any statute having a retrospective effect. In attachment in a circuit court, plaintiffs garnished one holding property of defendant as security for a note of defendant given prior to the act of 1891, and contended that the garnishees had exacted usurious interest, and had taken a new agreement for such interest subsequent to the act of 1891; but the court refused to charge, at the request of the garnishees, that the act did not render the note usurious, and that there was no evidence of payment of usurious interest. Held, that a constitutional question was fairly raised, and an appeal to the supreme court, rather than to the Kansas City court of appeals, was proper.

2. Bankr. Act July 1, 1898, establishing a uniform system of bankruptcy, provides in section 16 that the liability of a person who is a co-debtor with, or guarantor, or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt. Held, that a garnishee, not being a co-debtor, guarantor, or in any manner a surety, the statute does not apply to him.

3. Where a judgment has been rendered against a garnishee, which under the statute is a lien on his real estate, fixing his liability for the value of goods of the principal debtor attached in his hands, a subsequent discharge in bankruptcy of the principal debtor does not operate to discharge the garnishee.

4. Rev. St. 1899, § 388, subd. 4, enacts that in attachment, where the property is not accessible, the officer shall declare to the person in possession thereof that he attaches the same, and summons such person as garnishee. The return of an officer in attachment, where the property was inaccessible, recited that the officer delivered a copy of the summons of garnishment, which he made a part of his return, and in such copy notified the garnishee that he attached in his hands all debts and personal property due the defendant. Held, that the return showed a sufficient compliance with the statute, inasmuch as the same does not require an oral declaration by the officer.

5. Rev. St. 1899, § 3436, provides that notice of garnishment as provided by the statute, served on a garnishee, shall have the effect of attaching property of the defendant in the garnishee's possession; and section 388, subd. 4, declares that where, in attachment, the property is not accessible, the officer shall declare to the person in possession of the same that he attaches the same, and summons him as a garnishee. Held, that where, in attachment, the officer follows the steps pointed out in section 388, the plaintiff, while not obtaining a lien on the specific property, obtains a lien giving him a right to hold the garnishee responsible for its value.

6. Where a firm in the possession of goods belonging to another is summoned as a garnishee, and the partner having all the property in his possession is served with garnishment process, it is competent for the other partner by his voluntary appearance to waive service of process on him, and give jurisdiction of himself personally.

7. Where plaintiff garnished a firm having possession of goods belonging to defendant, pledged as security for a loan, and it was in issue whether usurious interest had been exacted for the loan, making the pledge invalid under Acts 1891, p. 170, and one of the partners made a deposition before a notary, and the shorthand notes, after being transcribed, were interlined by the witness before he signed the same, for which reason the notary refused to certify them and made another transcript, which was lost, a contention that it was not proper to permit the notary to testify as to the witness' declaration in regard to the rate of interest charged, on the ground that the corrected statement made by the witness could not be contradicted by the notary, was without merit, since the proof was of an admission by an adverse party.

8. Rev. St. 1899, § 3710, declares that in actions for the enforcement of liens on personal property, pledged or mortgaged, or in any case where the validity of such lien is drawn in question, proof that the party holding such lien has exacted usurious interest shall render any mortgage or pledge invalid. Section 388 declares that where, in attachment, the goods are not accessible, the officer shall declare to the person in possession that he attaches the same, and summons such person as garnishee. Held, that where, in attachment, property held as security for a debt of defendant is proceeded against under section 388, a contention that the plaintiff, because the property was not taken into the possession of the officer, is not in a position to avail himself of the exaction of usury, is without merit.

9. Acts 1891, p. 170, provides that, where any pledgee or mortgagee of personal property shall receive or exact usurious interest, the pledge or mortgage shall be invalid. Held, that where a note given before the passage of the act was secured by a pledge or collateral, and the issue was whether usurious interest had been taken on the note subsequent to the passage of the act, and the pledgee was permitted to explain entries in his books in order to show that no such interest had been taken, and the court instructed that usury should be found only if usurious interest had been exacted after the passage of the act, a verdict of the jury in favor of plaintiff must be held to amount to a finding that no usurious interest was taken after the taking effect of the statute, and hence a contention that a retroactive effect was given to the statute was without merit.

10. Where a pledgee holding jewelry as security for a loan was garnished, and, in order to obviate the necessity of naming each piece of jewelry in the verdict, it was stipulated that it should be sufficient for the jury to designate the goods in the hands of the garnishees as the diamonds and jewelry described in the note to secure which the jewelry had been pledged, the garnishee could not claim that the verdict was improper, in that a separate valuation of each article was not made.

11. Rev. St. 1899, § 3452, provides that if, in garnishment, it appear that the garnishee has property of the defendant's in his possession, the court or jury shall find all the property, and the value thereof, and that, unless the garnishee discharges himself by paying over or delivering the same, the court shall enter up judgment against the garnishee for the value as found in money, and that execution may issue to enforce the judgment. In garnishment, by agreement of the parties the verdict did not find the value of each article of jewelry in the hands of the garnishee, but found the value of the entire lot. The garnishees turned over a part of the property, and judgment was entered directing that the same be sold, the proceeds credited on the execution, and the balance collected from the garnishees. Held, that the judgment was proper.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by David Marx and others against E. Hart. Lamon V. Harkness and another were garnished. Judgment for plaintiffs, and the garnishees appeal. Affirmed.

On June 22, 1894, plaintiffs sued out a writ of attachment against the defendant E. Hart in the circuit court of Jackson county. On the succeeding day the sheriff served the following summons and notice of garnishment on Lamon V. Harkness and Lamon D. H. Russell, a member of the firm of Harkness & Russell, and known in the record as "Exhibit A":

"In the Circuit Court of Jackson County, at Kansas City, Missouri. October Term, 1894. David Marx, Millard Veit, and Sol H. Veit, Partners Doing Business under the Firm Name and Style of Marx, Veit & Co., Plaintiffs, vs. E. Hart, Doing Business under the Firm Name and Style of Hart Jewelry Company, Defendant. (No. 20,961.) To Lamon V. Harkness and Lamon D. H. Russell, Doing Business as Harkness & Russell, Garnishees: You are hereby notified that I attach in your hands all debts due by you to the above-named defendant, E. Hart, doing business under the firm name and style of Hart Jewelry Co., together with all personal property, money, rights, credits, bills, notes, drafts, checks, or other choses in action of the said defendant in your possession or charge or under your control at the time of the service of this garnishment, or which may come into your possession or charge or under your control or be owing by you between that time and the time of filing your answer, or so much thereof as will satisfy the sum of eighteen hundred seventeen ($1,817) dollars, with interest and cost of suit; and you are hereby summoned to be and appear before the honorable circuit court of Jackson county, at Kansas City, Missouri, on the first day of the next term thereof, — it being the 8th day of October, A. D. 1894, — then and there to answer such allegations and interrogations as may be exhibited by David Marx et al., the above-named plaintiffs. Given under my hand at office in Kansas City, Missouri, this 23d day of June, 1894. John B. O'Neill, Sheriff, by ____, Deputy."

On the back of the writ of attachment said sheriff made the following return:

"Executed the within writ in Jackson county, Missouri, on the 23d day of June, 1894, by delivering a copy of the summons of garnishee hereto attached, marked `Exhibit A,' and made a part of this return, to Lamon D. H. Russell, of the firm of Harkness & Russell, by...