Neiderjohn v. Thompson

• Decision Date: 28 February 1928
• Docket Number: 1395
• Citation: 264 P. 699,38 Wyo. 28
• Parties: NEIDERJOHN v. THOMPSON, ET AL. [*]
• Court: Wyoming Supreme Court

264 P. 699

38 Wyo. 28

NEIDERJOHN v. THOMPSON, ET AL. ^[*]

No. 1395

Supreme Court of Wyoming

February 28, 1928

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Suit by R. K. Neiderjohn, receiver of the First National Bank of Rock River, against H. A. Thompson, defendant, with G. R McConnell and others, garnishees, in which F. C. Thompson intervened. From the judgment, defendant and intervener appeal.

Affirmed.

Mentzer & Pickett, for appellants.

The court erred in striking portions of defendant's motion to dissolve the attachment and dismiss the garnishment proceedings, showing jurisdictional defects therein, 28 C. J 356; 2 R. C. L. 874; Bank v. Latham, 8 Wyo. 316; Salmon v. Mills, 49 F. 333; Smith etc. Co. v Derse (Kans.) 21 P. 167; Bank v. Tennison (Okla.) 217 P. 182. The attachment proceedings were fatally defective in failing to comply with the statute, 6022 C. S.; 6 C. J. 220; Munger v. Doolan (Conn.) 55 A 169; Ames v. Parrott (Nebr.) 86 N.W. 503; Ireland v. Adair (N. D.) 94 N.W. 866; H. B. Claflin Co. v. Bretzfelder (Ark.) 62 S.W. 905. The writ of attachment was not served on Rock River Mercantile Company. The service made was defective; 21 R. C. L. 1338; Boyle v. Co. (Ariz.) 131 P. 155; Ins. Co. v. Paving Co. (Okla.) 125 P. 734; State v. Railroad Co., 18 O. C. C. 546; Mining Co. v. Powell (Colo.) 70 P. 679. The writ was also defective, 6133 C. S.; Green v. Coit, 81 Oh. St. 280; Wyoming Fair Ass'n. v. Talbott, 3 Wyo. 244. The garnishment proceedings gave plaintiff no lien on the stock in question, 6126 C. S.; 28 C. J. 189, 190-193; 12 R. C. L. 821; Steen v. Norton, 45 Wisc. 412; State v. Duncan (Neb.) 56 N.W. 214; Cooper v. Frederick, 9 Ala. 738. The defective affidavit cannot be amended, Blythe Co. v. Swensen, 7 Wyo. 303. A voluntary answer by garnishee will not cure jurisdictional defect, Smith v. Conrad (Ore.) 31 P. 398. Service upon Thompson was not service upon the Company, 28 C. J. 227; Kittrell v. Lumber Co. (Tenn.) 64 S.W. 48; Holbrook v. Co. (Ga.) 39 S.E. 938; Gates v. Tusten (Mo.) 14 S.W. 827; McCain v. Mandell (Mich.) 153 N.W. 5; Raymond v. Co., 40 Conn. 401; Railroad Co. v. Rodgers (W. Va.) 44 S.E. 300; Trust Co. v. Mayer, (Mo.) 270 S.W. 407; Bristol v. Bent (Utah) 103 P. 1076; Barr v. Warner (Ore.) 62 P. 899. Service upon McConnell was insufficient to create a lien, 10 Cyc. 596-599; Staniels v. Raymond, 58 Mass. 314. Garnishment was available to reach a stock certificate in the hands of a third person, 28 C. J. 168; Co. v. Stokes, 15 O. C. C. 145; Ball v. Co. (Ohio) 65 N.E. 1015; Culp v. Mulvane (Kans.) 71 P. 273; 28 C. J. 167; 2 Cook Corporations 1636; Fowler v. Dickson (Del.) 74 A. 601; Pease v. Co. (Ill.) 85 N.E. 619; Packard Co. v. Laev (Wis.) 76 N.W. 596; 6020, 6021, 6022 C. S. The settled construction of a statute adopted from another state, is generally controlling, 36 Cyc. 1154; exceptions to the rule are noted in 25 R. C. L. 1073; Coad v. Cowhick, 9 Wyo. 316; Sutton v. Heinzle (Kans.) 116 P. 614; Co. v. Arizona, 206 U.S. 474; Hutchinson v. Krueger (Okla.) 124 P. 591. A construction inconsistent and unreasonable is not within the rule, Order of Hibernians v. Sparrow (Mont.) 74 P. 197. The specific provisions of Sec. 6022 must pervail over the general terms of Sec. 6143 C. S., 30 Cyc. 1130 and cases cited. The trial court erroneously received in evidence plaintiff's exhibits 8, 9 and 10, purporting to be ledger sheets showing the account of defendant Thompson with the Rock River Bank; they were inadmissible as against intervener, 10 R. C. L. 1134; moreover, they were not properly identified, 10 R. C. L. 1173, 17 Cyc. 402. Exhibit No. 9 was merely a partial account as was shown by the evidence, a fact rendering it incompetent. The amendment of plaintiff's answer to the petition of intervention made by leave of court interpolated a new defense, and was error, 5707 C. S.; Bank v. Schultze (Calif.) 193 P. 806; Lellman v. Mills (Wyo.) 87 P. 985; at least without a showing that plaintiff did not know of the defense before, Halleck v. Bresnahen, 3 Wyo. 73; Dill v. Malot (Okla.) 167 P. 219. The court erred in refusing to permit the dismissal of petition in intervention without prejudice, before final submission of the cause, 5879-5880; Noble v. Meyers, 76 Tex. 280; Dalhoff v. Coffman, 37 Ia. 283; Bamforth v. Ihmsen, (Wyo.) 204 P. 345. Dismissal in the manner provided by statute is an absolute right, Herr v. Schwager (Wash.) 234 P. 446; Banking Co. v. Ball (Kans.) 48 P. 137; Pullman Co. v. Transportation Co., 171 U.S. 138; Bunting v. Stone (Mo.) 154 S.W. 807. A case is not submitted until the argument is closed, Carpenter v. Dressler, (Ark.) 89 S.W. 89; Frank v. Cesena (Calif.) 218 P. 437, and cases cited. Intervener's motion to vacate the judgment for failure to revive the action in the name of the second receiver, should have been sustained, Brown v. Gay (Tex.) 13 S.W. 472; Pittsburg Co. v. Fiske, 178 F. 66. On the discharge of Niederjohn as receiver of the bank, there was no longer a plaintiff in the case, 30 Cyc. 21; Co. v. Ry. Co. (Ore.) 152 P. 272; Smith v. Harrington, 3 Wyo. 503; 5750-5754 C. S. A judgment cannot be rendered for or against a receiver after his discharge, Bond v. State, 9 So. 353; in re Estate of Dunham, 4 Oh. Dec. 325; Reynolds v. Stockton, 140 U.S. 254. The continued appearance of attorneys for the former receiver did not give validity to the proceedings after receiver's discharge; Judson v. Love, 35 Cal. 463; Coffin v. Edgington (Idaho) 23 P. 80; Pendleton v. Russell, 144 U.S. 640; Evans v. Co. (Ill.) 149 N.E. 802; Litchfield v. Crane, 123 U.S. 549; 33 C. J. 1106; Mexican Mill v. Co., 4 Nev. 40. The findings and judgment appealed from were invalid, not being within the issues; fraud must be pleaded and proven, 27 C. J. 772; Leavengood v. McGee (Ore.) 91 P. 453; McKey v. Smith (Ill.) 99 N.E. 695; Wilson v. Sullivan (Utah) 53 P. 994. A judgment upon issues outside the pleadings is erroneous, 33 C. J. 1152. The judgment is not supported by the evidence, Foster v. McAlester, 114 F. 145; fraud is never presumed, but must be proven, Crumpacker v. Bank (Idaho) 223 P. 229. The burden of proving fraud was on plaintiff, 27 C. J. 786-788. There is no evidence to support a finding that the conveyance was made to hinder or defraud creditors, Huiskamp v. Co., 121 U.S. 310; Foster v. McAlester, 114 F. 145. A voluntary conveyance cannot be set aside at the instance of subsequent creditors, in the absence of proof of fraudulent intent, 20 Cyc. 423.

Arnold and Arnold, for respondent.

H. A. Thompson was not before the court and has no rights as an appellant, for want of proper proceedings and grounds of appeal, Bank v. Swan, 3 Wyo. 356; F. C. Thompson, intervener, can raise but one question and that is his ownership of the stock involved; he cannot attack the attachment proceedings, Stanley v. Foot, 9 Wyo. 335; Schloredt v. Boyden, 9 Wyo. 392; Sannoner v. Jacobson, (Ark.) 14 S.W. 458; he is a stranger to the main action, 39 A. L. R. 1507; Co. v. Lansing Wagon Works, (Kan.) 48 P. 638; Co. v. Lewellyn (La.) 103 So. 823. An intervener must recover, if at all, on the strength of his own title, 38 C. J. 380, and cases in note. The claim of F. C. Thompson to the stock is not shown by the evidence and is apparently fraudulent, 27 C. J. 485. Authorities cited by appellant in the burden of proof are not in point; intervener assumed the burden of proof, Bank v. Frantz, (Wyo.) 349 P. 531; intervention in attachment is in the nature of a possessory action, Bailey v. Swain, 45 O. S. 657; the ledger sheets were admissible, 22 C. J. 892; Bean v. Lambert, 77 F. 862; Ry. Co. v. Lampkin, 116 S.W. 128; Heid Bros. v. Bank, 24 A. L. R. 904. Jurisdictional questions cannot be decided until F. C. Thompson shows an interest in the stock. The court acquired jurisdiction by attachment, Paine v. Mooreland, 15 Ohio 445; the attachment was properly levied, Bank v. Mosher, 88 N.W. 555; one in court under general appearance cannot object to the service, Roy v. Co., 3 Wyo. 417-419; the court's jurisdiction was complete, 6 C. J. 91; 28 C. J. 202, 214, 224, 238; the counterclaim having been filed to the petition of intervention, it could not be dismissed without prejudice, Sauter v. Bank, 8 Fed. (2nd Ser.) 123-124; Brinkerhoff v. Smith, 49 N.W. 1027; Wiswell v. Church, 14 O. S. 31, 33 C. J. 462; Enfield v. Stewart, 174 P. 478; Lee v. City, 109 N.E. 1062; Houtz v. County, 11 Wyo. 152. Substitution of the party plaintiff was unnecessary, Fordyce v. Dixon, 70 Tex. 694. Refusal to vacate judgment against F. C. Thompson was not erroneous, 5653 C. S.; Smith v. Harrington, 3 Wyo. 503, 512; Walker v. Kressman, 169 P. 17. A suit started by a receiver may be carried on by his successor in the name of the first receiver, Cook Corporations, 8th Ed. 4100. Every possible badge of fraud conceived of by any court is shown to exist as to the ownership of the stock claimed by F. C. Thompson, and no explanation is offered, 27 C. J. 135, 428, 488-491, 494, 495. F. C. Thompson was only acting as a dummy for his brother and the transfer to him was a badge of fraud, and stands unexplained. The evidence shows a conspiracy on the part of the two brothers to make a fraudulent claim of the stock; the judgment against H. A. Thompson is final, no lawful appeal being prosecuted therefrom; F. C. Thompson, the intervener, cannot sustain the questions urged before this court; the stock was garnisheed in a lawful manner and the judgment should be affirmed.

Mentzer & Pickett, in reply.

No writ of garnishment was issued on McConnell or the Rock River Mercantile Company; respondent attempted to sell the stock without execution or process; the appeal is taken, not from the judgment in the main case, but from the judgment holding the garnishment valid, and was...