Norman v. Pennsylvania Fire Ins. Co.

• Decision Date: 29 November 1911
• Citation: 141 S.W. 618,237 Mo. 576
• Parties: NORMAN v. PENNSYLVANIA FIRE INS. CO.
• Court: Missouri Supreme Court

141 S.W. 618

237 Mo. 576

NORMAN v. PENNSYLVANIA FIRE INS. CO.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. ABATEMENT AND REVIVAL (§ 14)—PENDENCY OF PROCEEDINGS IN COURTS OF SISTER STATES—EFFECT—PROOF.

A defendant, to avail himself of the pendency of garnishment proceedings in a sister state, must prove the pendency of the proceedings in a court having jurisdiction, and that the proceedings were in compliance with the laws of such state.

2. GARNISHMENT (§ 1)—STATUTORY REMEDY.

Garnishment, unknown to the common law, is regulated by the Legislature of each state.

3. EVIDENCE (§ 35)—LAWS OF OTHER STATES —JUDICIAL NOTICE.

The court does not judicially notice the statutes of a sister state, even for the purpose of the full faith and credit clause of the federal Constitution.

4. STATUTES (§ 289)—LAWS OF OTHER STATES —EVIDENCE—SUFFICIENCY.

The omission to plead and prove the laws of a sister state, regulating garnishment, is not supplied by offering in evidence the opinion of a court of such state in garnishment proceedings, which does not set forth the method of instituting garnishment, or any of the statutory provisions regulating garnishment.

5. ABATEMENT AND REVIVAL (§ 14)—PROCEEDINGS IN OTHER STATE.

A garnishment proceeding in another state, which does not comply with Rev. St. 1909, § 2301, providing for the filing of a bond, petition, and affidavit before the issuance of the writ, does not bar an action against the garnishee, in the absence of proof of the statutes of such state, regulating garnishment, on the theory that the court may assume that such statutes are the same as the statutes of Missouri, since, under the statutes of Missouri, the issuance of the writ, without filing the bond, petition and affidavit is unauthorized.

6. GARNISHMENT (§ 99)—FAILURE TO SERVE DEFENDANT—RIGHT OF GARNISHEE.

Where, in garnishment, no service on defendant was made, the garnishee could not validate the proceedings as against defendant.

7. COURTS (§ 36)—JUDICIAL PROCEEDINGS— VALIDITY—PRESUMPTIONS.

The exercise by a court of general jurisdiction of jurisdiction in garnishment proceedings is the exercise of special and statutory jurisdiction, and it is not supported by the presumption attending the acts of courts of general jurisdiction.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by W. W. Norman against the Pennsylvania Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bates, Harding, Edgerton & Bates and Charles Liles, for appellant. Jas. F. Green and N. A. Mozley, for respondent.

BLAIR, C.

The facts, in so far as they are pertinent to a consideration of the error assigned, are brief. This is a suit on an insurance policy issued by appellant to respondent, covering certain machinery in use in Stoddard county, and "payable to Sheip & Vandergrift as interest may appear." After loss, the amount due on the policy was adjusted, and later this suit was brought.

The answer alleged, among other things, that Sheip & Vandergrift garnished appellant by attachment in the court of common pleas of Philadelphia; that said court had jurisdiction of the garnishment proceedings, and such proceedings were still pending, Sheip & Vandergrift claiming the full amount due under the policy; that the policy was payable to Sheip & Vandergrift as their interest might appear, and respondent was not entitled to recover on the policy until the right of Sheip & Vandergrift to the proceeds of the policy had been determined, and denies collusion, and offers to pay the money into court to await the result of the controversy between respondent and Sheip & Vandergrift.

The reply denies the jurisdiction of the Pennsylvania court in the garnishment proceedings, denies that respondent is indebted to Sheip & Vandergrift, and alleges collusion between these and appellant.

On the trial respondent introduced the policy, proof of loss, and the statement of the adjuster. Appellant offered a transcript of the records and proceedings of the court of common pleas No. 5 for the county of Philadelphia, Pa., which showed that a writ of attachment issued out of that court on February 18, 1907, against respondent, and that the sheriff made return, among other things, that he "attached as within commanded 2-18-1907 at 1:48 o'clock p. m."

There was no service upon respondent. The only affidavit shown by the transcript was one sworn to February 19, 1907, and attached to the "plaintiff's statement of claim and cause of action," merely verifying the truth of the allegations thereof, among which allegations is one that respondent was a resident of Missouri. When this was filed does not appear, further than that it follows entries dated February 20, 1907, and precedes others dated February 25, 1907. One Wintersteen entered his appearance for appellant February 20, 1907. No judgment or other proceedings of the court, as such, were certified. Appellant then offered in evidence an opinion of the district court of Pennsylvania to show the jurisdiction of the court of common pleas.

There was evidence for respondent tending to show that he owed Sheip & Vandergrift nothing, and that they were heavily indebted to him, and evidence generally in support of the allegations of his pleadings. No objection for defect of parties was taken.

The court gave judgment on the policy for the amount at which the loss had been fixed by the adjustment, and denied a motion to stay the execution until the determination of the garnishment proceedings in Pennsylvania. The motion mentioned does not appear in the record.

Appellant contends that the trial court erred in refusing to stay the execution on the judgment rendered until final disposition had been made of the garnishment proceedings in Pennsylvania, which, it is insisted, are shown by the record to have been pending in the court of common pleas in that state. In order that appellant might avail itself of any defense or partial defense or secure a stay of execution in this action, on the ground of the pendency of...