Minor v. Rogers Coal Co.

• Decision Date: 08 March 1887
• Citation: Minor v. Rogers Coal Co., 25 Mo.App. 78 (Mo. App. 1887)
• Parties: B. C. MINOR ET AL., Respondents, v. ROGERS COAL COMPANY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 78

B. C. MINOR ET AL., Respondents, v. ROGERS COAL COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Reversed and remanded.

JOHN O'DAY and E. D. KENNA, for the appellant: A debt paid through garnishment process can not be recovered again, and the courts of Kansas having jurisdiction their judgments are binding. Dole v. Boutwell, 1 Allen 288; Foster v. Jones, 15 Mass. 185; Merriam v. Rundlett, 15 Pick. 512.

C. W THRASHER, for the respondents: The garnishment of the appellant in Kansas commenced long after the pendency of this suit, and being in another jurisdiction, constitutes no bar to the respondents' recovery. Wallace v McConnell, 13 Peters [U. S.] 136; Drake on Attachment [3 Ed.] sects. 619, 621. It was the duty of the appellant, when garnished, to disclose, in its answer, every fact which would have prevented a judgment against it. Drake on Attachment [3 Ed.] sect. 630; Wright v. Railroad, 27 N.W. 90.

OPINION

LEWIS P. J.

The plaintiffs seek to recover four hundred and sixty-eight dollars, as the price of a car load of flour sold and delivered to the defendant. The answer is a general denial with an additional defence, setting up that, since the commencement of this suit, B. F. Hobart obtained a judgment in the district court of Crawford county, state of Kansas, against the present plaintiffs, for the same sum which is herein sued for; that, upon that judgment process of garnishment was served upon these defendants, and such further proceedings were had, that these defendants were afterwards compelled, by order of the said district court, to pay, and did pay, into said court the said sum demanded in garnishment. Wherefore they say that the demand herein sued for has been fully paid and discharged. On the plaintiffs' motion, this part of the answer was stricken out by the court, as containing no defence to the action. The only question for determination here is as to the propriety of this ruling.

It is a settled rule, founded upon obvious principles of natural justice, that a garnishee can not lawfully be compelled to pay the same indebtedness twice. If it has happened in a few instances that, in due course of law, a second payment has been enforced, this was not due to a failure of the rule, but was because of the person's failure to use proper diligence in avoiding the first payment. If, in the first successful proceeding against him, he has omitted an obvious defence which would have constituted an effectual bar, he can not complain if, in another proceeding, against which no defence is available, an adverse judgment shall again result. Thus, two payments of one indebtedness may be brought about by a garnishee's own default; but not because both were compellable primarily, as a matter of abstract law. It is equally true, that, if a person be subjected to two separate proceedings on account of the same indebtedness, and no lawful defence is possible against the first that comes to trial, so that judgment against him is the inevitable result, this will create a conclusive defence against the one secondly coming to be heard.

Our supreme court, in Lieber v. St. Louis Agricultural and Mechanical Association (36 Mo. 382), held that " the pendency of a suit against the garnishee, by the defendant in attachment or execution, will not relieve the garnishee from his liability under the garnishment." This rule, broadly applied, without any reference to diversity of jurisdictions, would determine that the pendency of the present suit furnished no available defence against the garnishment in Kansas; from which it would follow that the compulsory payment there made created a bar against any recovery in the present case, and that the circuit court erred in striking out the defence to that effect. But the plaintiffs here insist that the Lieber decision has no application where the rival proceedings lie in different jurisdictions, and that the Kansas garnishment, however determined, could be of no efficacy against a suit pending in Missouri. This appears to have been the view adopted by the circuit court.

In Wallace v. McConnell (38 U.S. 151), suit was instituted in the United States district court of Alabama and, during its pendency attachment proceedings were begun in an Alabama state court by a creditor of the plaintiff, under which the debt sued on in the federal court was attached in the defendant's hands. The defendant set up this attachment by a plea puis darrein continuance in the federal court. The plea was held bad on demurrer, and this ruling was sustained on error. Said the United States Supreme Court: " The plea shows that the proceedings on the attachment were instituted after the commencement of this suit. The jurisdiction of the district court of the United States, and the right of the plaintiff to prosecute his suit in that court having attached, that right could not be arrested or taken away by any proceedings in another court. This would produce a collision in the jurisdiction of courts, that would extremely embarrass the administration of justice. If the attachment had been conducted to a conclusion and the money recovered of the defendant, before the commencement of the present suit, there can be no doubt that it might have been set up as a payment upon the note in question. * * * If this doctrine be well founded, the priority of suit will determine the right. The rule must be reciprocal, and where the suit in one court is commenced, prior to the institution of proceedings under attachment in another court, such proceedings can not arrest the suit, and...