Marx v. Hart

• Decision Date: 17 January 1902
• Citation: 66 S.W. 260,166 Mo. 503
• Parties: MARX et al. v. HART et al.; HARKNESS et al., garnishees, Appellants
• Court: Missouri Supreme Court

66 S.W. 260

166 Mo. 503

MARX et al. v. HART et al.; HARKNESS et al., garnishees, Appellants

Supreme Court of Missouri, Second Division

January 17, 1902

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

L. A Laughlin for appellants.

(1) A judgment in a garnishment suit is dependant upon the judgment in the principal case. If the latter is void, reversed, or satisfied, the garnishment judgment shares the same fate. France v. Evans, 90 Mo. 74; McCloon v Beattie, 46 Mo. 391; Smith v. Railroad, 49 Mo.App. 54; Hopkins v. Huff, 67 Mo.App. 394; Rowlett v. Lane, 43 Tex. 274; Mitchell v Watson, 9 Fla. 160; Withington v. Southworth, 26 Mich. 381; Clough v. Buck, 6 Neb. 343; Hammett v. Morris, 55 Ga. 644. (2) The plea for a discharge of the garnishees should be granted. (3) The court had no jurisdiction over the garnishees because there was no service of the garnishment summons on them which authorized a judgment finding property of the defendant in their possession. Gates v. Tusten, 89 Mo. 22; Haley v. Railroad, 80 Mo. 114; Coleman v. Ins. Co., 74 Mo.App. 675; Dunn v. Railroad, 45 Mo.App. 36; Epstein v. Salorgne, 6 Mo.App. 352. The return was wholly insufficient to bring the res into court so as to authorize a judgment against the garnishees. On the face of the return the court acquired no jurisdiction of the res. Fletcher v. Wear, 81 Mo. 524; Norvell v. Porter, 62 Mo. 309; Haley v. Railroad, 80 Mo. 112; Gates v. Tusten, 89 Mo. 13; Keane v. Bartholow, 4 Mo.App. 507; Dunn v. Railroad, 45 Mo.App. 30; Brecht v. Corby, 7 Mo.App. 305; Connor v. Pope, 18 Mo.App. 86. (4) The judgment against garnishees is void because there is no return of service or attempt to get service on the garnishee, Harkness. Atkins v. Prescott, 10 N.H. 120; Proctor v. Lewis, 50 Mich. 329; Parker v. Danforth, 16 Mass. 299; Warner v. Perkins, 8 Cush. (Mass.) 518. (5) The court erred in admitting the testimony of witness Diamond as to what garnishee Russell said at the time of the taking of his deposition. The paper filed by the notary was not the deposition of Russell because he never assented to it. The paper signed by Russell and which was offered in evidence was his deposition. Mason v. Booth, 34 Mo. 316. The deposition was the best evidence of what the witness said, and presumably contained all he did say, and testimony to contradict it was incompetent. Dry Goods Co. v. McMahan, 61 Mo.App. 506. Where a deposition is lost, the proper practice is to substitute a copy for it, if obtainable, by order of court, as other records are substituted. Gage v. Eddy, 167 Ill. 102; Carter v. Davis, 81 Mo. 668; Finney v. College, 13 Mo. 267. (6) The court erred in refusing the peremptory instruction asked by the garnishees for a verdict in their favor. Plaintiffs can not attack the validity of the collateral note held by garnishees. Webb on Usury, sec. 366; Taylor on Usury, p. 403; Hill v. Taylor, 125 Mo. 342; Yardley v. Indem. Co., 1 Flip. 551; Hollingsworth v. Swickard, 10 Iowa 385; Zellner v. Mobley, 84 Ga. 746, 20 Am. St. 390; Nat. Bk. v. Brigham, 50 Vt. 105; Rubber Co. v. Wilson, 55 Mo.App. 656. This applies to general creditors. Baskins v. Calhoun, 44 Ala. 582; Barbour v. Tompkins, 31 W.Va. 410; McKinney v. Hotel Co., 12 Heisk. (Tenn.) 104. That a garnishing creditor is a stranger and can not attack a pledge for usury, has been expressly held by this court in the case of Griebel v. Imboden, 158 Mo. 642. (7) The verdict of the jury and judgment thereon are irregular and void. Donk Bros. v. Kinealy, 81 Mo.App. 652; R. S. 1899, sec. 3439; Sherman v. Barrett, 1 Rich. L. (S. C.) 457; Bethel v. Linn, 63 Mich. 464; Picket v. Bridges, 10 Hum. (Tenn.) 171; Noland v. Leech, 10 Ark. 504; Hanf. v. Ford, 37 Ark. 545; Hickman v. Ford, 43 Ark. 208; Haynes v. Crutchfield, 7 Ala. 189; Jones v. Anderson, 76 Ala. 427; Ketchum v. Brennan, 53 Miss. 598; Spratley v. Kitchens, 55 Miss. 578.

I. J. Ringolsky for respondents.

(1) A person acquiring a lien more than four months prior to an adjudication of bankruptcy does not lose his lien by a discharge in bankruptcy. Doe v. Childess, 21 Wall. 646; Collier on Bankruptcy, p. 155; Loveland, Bankruptcy, pp. 612, 613; McGarry v. Lewis Coal Co., 93 Mo. 241; In re Peck, Fed. Cas. No. 10886; Stoddard v. Locke, 43 Vt. 574; St. Louis v. Lumber Co., 114 Mo. 87; Pool v. Ragland's Admr., 57 Ala. 419; Carr v. Farrington, 63 N.C. 560. (2) The court has complete jurisdiction over both the garnishees, Harkness and Russell, and of the property found in their possession, for the summons, declaration and return, comply in every particular with the law. R. S. 1899, secs. 388, 3436, 3438. The return of the sheriff is a full compliance with all requirements of the decisions of this State, as to what the "return" must contain. Knecht v. Ins. Co., 90 Pa. St. 121; Coffin Co. v. Rubelman, 15 Mo.App. 280; McGarry v. Coal Co., 93 Mo. 237; Todd v. Railroad, 33 Mo.App. 110; Connor v. Pope, 18 Mo.App. 86; Norvell v. Porter, 62 Mo. 310. If what the officer says in his return is defectively stated, still, if from the record the court can ascertain all that was done by the officer, and that what he did was a fair compliance with the requirements of the law, then the court has jurisdiction over the subject-matter and the officer could be permitted to amend his return so as to state the facts connected with his service, even in the appellate court. R. S. 1899, secs. 672, 673; Muldrow v. Bates, 5 Mo. 214. (3) The judgment against the garnishees is not void because there was no service on garnishee Harkness. On the contrary, it is valid against both Harkness and Russell. Connor v. Pope, supra; Norvell v. Porter, supra. The officer having attached in the hands of Russell (for he was summoned and garnisheed as a partner and individually) all the property and debts, the court thereby obtained jurisdiction over the subject-matter. It is held to be the declaration to the garnishee that creates the attachment of the property in his hands. Fletcher v. Wear, 81 Mo. 530; Connor v. Pope, supra; Scott and Rule v. McGaurge, 3 Mo. 88; Coffin Co. v. Rubelman, supra. It has been decided in other jurisdictions that a garnishment served on one partner, having firm assets in his possession, is sufficient to bind partnership property. Anderson v. Wauzer, 5 Howell (Miss.) 587; Speak v. Knisen, 17 Tex. 301; Hinkley v. Water Power Co., 9 Minn. 44. (4) The court did not err in admitting witness, Diamond, to testify to what Russell said at the time his deposition was taken in the attachment suit. Wise v. Loring, 59 Mo.App. 269; Bogie v. Nolan, 96 Mo. 85. (5) The court did not err in refusing to give the peremptory instruction asked for by the garnishees directing a verdict in their favor, because the plaintiffs, as attaching creditors, had the legal right to attack the validity of the pledges made to the garnishees, and because there was evidence to sustain the fact that notwithstanding the note for $ 1,020 was made prior to the passage of the usury law in June, 1891, still, there was evidence from which the jury had the right to find that usury had been exacted on said loan under a new contract made since June 22, 1891. (6) The verdict of the jury was regular and proper, as was also the order made by the court, and the judgment rendered against the garnishees for failure to comply with the order. Cobbey on Replevin, secs. 1063, 1064; Herring v. Corder, 49 Mo.App. 381; Blake v. Powell, 26 Kas. 320. (7) The garnishees, Harkness and Russell, by turning over part of the goods in their possession to the sheriff, as ordered by the court, thereby affirm the validity of the court's order and can not now complain of the same. They waived all objections to the legality of the order. Falon v. Goodwin, 35 Kas. 125; Babbitt v. Corby, 13 Kas. 612; Pucking v. McMahon, 76 Mo.App. 372; R. S. 1899, sec. 806; Houck v. Swartz, 25 Mo.App. 17; 2 Shinn on Attachments, sec. 702, p. 1145 and 1146; Rolette Co. v. Pierce Co., 80 N.W. 804; School District v. Board of Supervisors, 97 Cal. 438.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

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 vs. Harkness and 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.

To Lamon V. Harkness and Lamon D. H. Russell, doing business as Harkness & Russell, garnishee:

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 Company, 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 and seventeen 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 eighth day of October, A. D. 1894, then and there to answer

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