Owens v. McCleary

• Decision Date: 25 May 1925
• Docket Number: No. 15386.,15386.
• Citation: 273 S.W. 145
• Parties: OWENS v. McCLEARY (MISSOURI SAV. ASS'N BANK, Garnishee).
• Court: Missouri Court of Appeals

273 S.W. 145

OWENS v. McCLEARY (MISSOURI SAV. ASS'N BANK, Garnishee).

No. 15386.

Kansas City Court of Appeals. Missouri.

May 25, 1925.

Rehearing Denied June 15, 1925.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by William Owens against A. S. Mc-Cleary, in which plaintiff obtained judgment and thereafter had an execution issued against the Missouri Savings Association Bank, as garnishee. From a judgment rendered against it, garnishee appeals. Reversed.

Frank M. Lowe, of Kansas City, for appellant.

W. M. Bowker, of Nevada, Mo., S. O. Hargus, of Kansas City, and W. H. Hallett, of Nevada, Mo., for respondent.

BLAND, J.

Plaintiff obtained a judgment in the circuit court of Jackson county, Mo., against defendant, A. S. McCleary, who appealed the case to the Supreme Court without giving a supersedeas bond, where it is now pending. Thereafter plaintiff had an execution issued against the garnishee herein, who was summoned to answer at the March, 1924, term of the circuit court of Jackson county, Mo. On the first day of the March term, the same being the 10th day of March, 1924, plaintiff filed his interrogatories in the assignment division of said circuit court, which division was presided over by the Hon. Thomas B. Buckner, the regular judge of division No. 1 of that court. On the 19th day of March, 1924, the garnishee filed in said assignment division its answer to said interrogatories. The answer was filed "by leave of court," in other words, by leave of the judge of the assignment division. The caption of the interrogatories and answer is as follows:

"In the Circuit Court of Jackson County, Missouri, at Kansas City, March Term, 1924. No. 162374."

On the back of the interrogatories filed appears the following:

"Filed March 10, 1924. W. H. Harper, Clerk. by J. A. Capehar, Deputy."

The summons, interrogatories, and answer bear the same case number as the original suit in which the judgment was rendered.

On April 28, 1924, plaintiff filed a motion in the assignment division to compel the garnishee "to pay money into court" because the garnishee in its answer admitted that at the time it was summoned as garnishee "it held on deposit * * * $784.76 to the credit of the defendant, A. S. McCleary." On April 30, 1924, division No. 3 of the circuit court of Jackson county, Mo., sustained the motion to compel the garnishee to pay money into court. On May 5, 1924, the garnishee filed in the assignment division a motion asking the court to cite M. M. Riner to show cause for claiming the "sum of five hundred dollars ($500.00) so demanded by him from said garnishee on account of a certain check given by the defendant herein to said claimant" on December 29, 1923. On the same day in division No. 3 the garnishee filed a motion for an order directing the claimant M. M. Riner, to show cause. This motion is not shown in the record. On May 19, 1924, division No. 3 overruled the motion to cite M. M. Riner and rendered judgment against the garnishee in the sum of $784.76, the amount which the garnishee in its answer stated was in its bank to the credit of the defendant, and the garnishee has appealed.

It is insisted that division No. 3 was without jurisdiction of the subject-matter in the garnishment proceedings, for the reason that there was never filed any interrogatories or answer in that division; that the answer being the only pleading, and there being an entire absence of any answer filed in division No. 3, that court was without jurisdiction to render the judgment. We think garnishee's contention is well taken. The case was tried on the theory that the answer was the pleading in the case.

It is well settled that a court cannot of its own motion set itself in action; that it has no power to decide questions, except such as are presented by the parties in their pleadings; that, where a court adjudicates a matter not embraced in the issues as made by the pleadings, that part of the judgment so adjudicated is coram non judice and void; that the fact that the judgment is by consent of all parties does not affect the right of any of them to dispute its validity. State ex rel. v. Muench, 217 Mo. 124, 117 S. W. 25, 129 Am. St. Rep. 536. The case of Potter v. Whitten, 161 Mo. App. 118, 142 S. W. 453, is clearly not in point. A court may have jurisdiction of the res, but not jurisdiction to determine the controversy in the absence of pleadings. If this were not true, a court could award money paid into court by a stakeholder without any pleading on the part of the parties contending for the money. It has been held:

"* * * That each judge of the various divisions of the circuit court of Jackson county, Mo., at Kansas City, holds court for the trial of such causes as are assigned to him as separately and distinctly from the circuit court held by any of the other judges as he does from the circuit court held in any other circuit in the state. Title Guaranty & Surety Co. v. Drennon (Mo. App.) 208 S. W. 474, 475; Voullaire v. Voullaire, 45 Mo. 607; Haehl v. Wabash Ry. Co., 119 Mo. 325, 337, 24 S. W. 737; Goddard to...