Mull v. Jones

• Decision Date: 07 January 1885
• Citation: 33 Kan. 112,5 P. 388
• Court: Kansas Supreme Court
• Parties: C. L. MULL & SON v. ED. F. JONES

5 P. 388

33 Kan. 112

C. L. MULL & SON v. ED. F. JONES

Supreme Court of Kansas

January 7, 1885

Error from Jackson District Court.

ACTION by Mull & Son against Jones, as garnishee, to recover $ 80.35. Trial at the March Term, 1884, and judgment for defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

J. H Keller, for plaintiffs in error.

Hayden & Hayden, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On the 28th day of September, 1882, the plaintiffs, Charles L. Mull & Son, obtained a judgment before a justice of the peace of Jackson county, against one W. A. Brown, for the sum of $ 60.85. An execution was issued thereon, and returned unsatisfied. On the 14th day of November, 1883, the plaintiffs made and filed with said justice the required affidavit, and caused a notice in garnishment to issue to A. L. McDowell, T. P. Moore, and the defendant herein, Ed. F. Jones, commanding them to appear and answer all questions touching their indebtedness to W. A. Brown, and the property and money of every description in their hands belonging to said Brown. On the 17th day of November, 1883, Ed. F. Jones appeared, and answered that he was not indebted to W. A. Brown, and had no money or property belonging to Brown in his hands at the time the notice was served upon him. His answer not being satisfactory to the plaintiffs, notice was given to the justice of that fact, and a trial of the truth of his answer was demanded; whereupon a trial was accordingly had before the justice of the peace, and a finding made that the answer of said Jones was not true, that the disclosures were incomplete, and that at the time the garnishee notice was served upon him he was indebted to said W. A. Brown in the sum of $ 119.78. The justice of the peace thereupon made an order that Jones pay into that court the sum of money so found to be due, or so much thereof as would be sufficient to discharge the judgment and costs recovered by the plaintiffs against W. A. Brown, to wit, the sum of $ 80.35. The plaintiffs then demanded of Jones the amount so ordered to be paid, which demand was refused. Thereupon, and on the 24th day of November, 1883, the plaintiffs, Charles L. Mull & Son, commenced this action against the defendant Ed. F. Jones, as garnishee, to recover the sum of $ 80.35, based upon the findings and order above mentioned. On a trial before a justice of the peace, a Judgment was obtained by default against the defendant, who thereupon appealed to the district court, and a trial was there had by the court and a jury, resulting in a verdict and judgment in favor of the defendant.

The plaintiffs allege error in the reception of testimony, and in the instructions given to the jury. In the objections to the judgment and verdict made by plaintiffs, they discuss and present two points:

1. They contend that the order made by a justice of the peace in a garnishment proceeding under § 42, ch. 81, Comp. Laws of 1879, requiring the garnishee to pay money due to his creditor into court, is a judgment, and of such a character as concludes the garnishee, and precludes any future or further examination or consideration of the questions that were or might have been inquired into upon the trial of the truth of the garnishee's answer.

The force and effect of this order has already been considered by the court, and determined against the claim made by plaintiffs in Board of Education v. Scoville, 13 Kan. 17. In speaking of such orders made by a judge pro tem. of the district court and by a justice of the peace, the court say:

"Neither of said orders is a judgment. The making of them. is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights, and the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action." (See also Phelps v. Railroad Co., 28 Kan. 169.)

It is clear, then, that the defendant was not concluded by the order, and was entitled to show whether he was indebted to W. A. Brown at the time the garnishee process was served upon him, and if so, what the character of the indebtedness was. This was the nature of the testimony offered by Jones on the trial of this action, and we think there was no error in its admission by the court.

2. The other point contended for by the plaintiffs is, that. the garnishee cannot set up the defense or introduce evidence to show that the money or property in his hands belonging to the judgment debtor, or his indebtedness to such debtor, is exempt. It appears from the testimony offered in behalf of the defendant Jones, that W. A. Brown, who is the head of a family and a resident of Jackson county, Kansas, owned a team of horses, which he claims were exempt, and that he sold them to J. C. Brown, his wife, who afterward, in turn, sold them to A. L. McDowell, in payment of which, McDowell. executed his promissory note payable to the order of J. C. Brown. Mrs. Brown placed the note in the hands of Jones for collection, and afterward withdrew it from him, and indorsed and sold the same to her mother, M. A. Crawford, who thereupon returned the note for collection to the defendant Jones, and he collected the amount due thereon from McDowell on the same day that the garnishee notice was served upon him. Testimony was given showing that at the time W. A. Brown sold the team he had no other horses or mules, and therefore the team was exempt. All testimony of this character, and in regard to the exemption of the money, was objected to by the plaintiffs and admitted over their objection. After the evidence was all in, the plaintiffs asked the court to instruct the jury as follows:

"1. That the defendant Jones cannot in this case set up the defense that the money in his hands was exempt under the statute of the state of Kansas.

"2. That the order of the justice of the peace in the garnishee proceeding made in said cause, ordering Jones, the defendant herein, to pay the money in his hands into court, or so much thereof as will be sufficient to discharge the judgment in the case of the said plaintiffs against W. A. Brown, and the costs of said cause, and that said order not having been appealed from, that the said order is now final, and that said Jones cannot interpose the defense that said money in his hands is exempted by statute."

Both of these instructions were refused by the court, and the court thereupon gave the following instruction:

"If you find from the evidence that the money in the hands of Ed. F. Jones, the defendant, was for a team of horses sold by W. A. Brown, and that it was the only team of horses he owned at the time, and that he had no mules or other horses, and that he was the head of a family and a resident of the state of Kansas, then the money is exempt and is not subject to garnishee process, and your verdict will be for the defendant."

Plaintiffs excepted to the giving of this instruction, as well as to the refusal of those which they had asked; and on this exception they raise the question, Can the garnishee interpose the claim of exemption in behalf of his creditor? We think this question must be answered in the affirmative. The garnishee is required to appear and answer all questions that may be put to him touching the money or property in his possession belonging to the...