Pendergast v. Muns
| Decision Date | 19 October 1931 |
| Docket Number | 6961. |
| Citation | 238 N.W. 344,59 S.D. 135 |
| Parties | PENDERGAST et al. v. MUNS et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.
Action by Michael C. Pendergast and Florence Pendergast, as executors of the estate of Rose Pendergast, deceased, against Ed. Muns, in which Edwin Erickson and others were made garnishee defendants, and Sam Ingram was made party defendant to the garnishee action. An order was entered requiring the clerk to pay over to John D. Lynch and others, attorneys for plaintiffs, certain moneys in his hands deposited with him by the garnishees to satisfy a judgment rendered in the principal action in favor of plaintiffs. From such judgment defendant Ed. Muns appealed, and the judgment was reversed. On application of defendants Muns and Ingram, an order was entered requiring John D. Lynch and others to repay to and redeposit with the clerk of the court the money previously paid them, and from such order John D. Lynch and others appeal.
Reversed.
Danforth & Barron, of Sioux Falls, for appellants.
James O. Berdahl and Teigen & Davis, all of Sioux Falls, for respondent.
The action above entitled was instituted in the circuit court of Minnehaha county, S. D., by Michael and Florence Pendergast as executors of Rose Pendergast, plaintiffs, against Ed Muns, defendant, on August 3, 1925. In that action Edwin Erickson, J. W. Mooty and Adrian State Bank, a corporation, were garnished. The garnishment process was served upon the garnishees named and upon the principal defendant Muns. On August 10, 1925, the garnishees made a joint disclosure reciting that they were indebted to the principal defendant Muns and to one Ingram (who, as the record shows, was a son-in-law of Muns) in the sum of $15,264.67, which indebtedness arose by virtue of a judgment recovered against said garnishees in a previous action wherein Muns and Ingram had been the plaintiffs. The disclosure further recited that the garnishee defendants had no knowledge as to whether said judgment against them was the property of Muns or of Ingram, or in what proportion Muns and Ingram claimed or owned the same. The disclosure also recited that the garnishee defendants desired to pay the judgment in order to stop accumulation of interest thereon, and they tendered the full amount thereof into court to be held by the clerk of the court pending the determination of the question of who was entitled thereto. On August 10, 1925, and apparently pursuant to said disclosure, an order was entered in the case of Pendergast against Muns directing the clerk of the court to receive and receipt for the moneys tendered by the garnishees pursuant to their disclosure, and hold the same until the further order of the court, and on the same day the clerk of courts did accept and receive from the garnishee defendants Erickson, Mooty, and Adrian State Bank the sum of $15,264.67 (being the amount due from said garnishees on the judgment against them obtained jointly by Muns, principal defendant in the instant case, and Ingram).
The issues between the Pendergasts as plaintiffs and Muns, the principal defendant, were tried, and resulted in a judgment in favor of the plaintiffs and against the defendant Muns in the amount of $15,007.80 on March 13, 1926.
No effort appears to have been made to bring Ingram into the proceedings or to determine his interest in the fund deposited by the garnishees with the clerk of courts until after judgment had been secured against Muns in the principal case.
On April 13, 1926, an order was made and entered requiring Ingram to show cause before the court on April 26, 1926, "why an order of this court should not be made and entered making the said Sam Ingram a party defendant to the above entitled garnishment action." This order to show cause was not served upon Ingram within the time required by its terms, and no effort was made to bring it on for hearing. Thereafter, and on June 29, 1926, upon the ex parte application of the plaintiffs (the Pendergasts), an order was made and entered in the case of Pendergast against Muns reciting the garnishment therein, the disclosure of the garnishees, and the deposit by them with the clerk, and ordering that Ingram "be and he hereby is made a party defendant to the above garnishee action, and that notice thereof setting forth the facts, together with a copy of this order, shall be served upon the said Ingram in the manner required for the service of a summons in a civil action, and that such service may be made upon him personally within the state of Minnesota (Ingram residing at or near Marshall, Minnesota) and that he have thirty days after the service of said notice and order upon him to answer in the above garnishee action setting forth any claim or defense which he may have to said action." This order, together with a copy of the affidavit upon which it was based, was served upon Ingram and service admitted by him at Marshall, Minn., on June 30, 1926. On July 31, 1926, upon the application of plaintiffs' attorneys, which application recited, among other things, that Ingram had made no appearance pursuant to the requirement of the order of June 29th and was in default, a document was signed by the trial judge entitled "Judgment in Garnishee Action," wherein the making and service of the order of June 29th was recited, and it was further recited that Ingram was in default and had failed to answer or appear pursuant to the requirements of said order, and it was ordered and adjudged that Ingram had no right or title to or interest in the money previously and on August 10, 1925, deposited with the clerk by the garnishees, Erickson, Mooty, and Adrian State Bank, and that the principal defendant, Muns, was the sole owner thereof. Thereafter, and on the same day, an order was entered requiring the clerk to pay over to Messrs. Lynch, Doyle & Mahoney, attorneys for plaintiffs Pendergasts, the balance of the money in his hands deposited with him by the garnishees, Erickson, Mooty and Adrian State Bank, and to partially satisfy the judgment in the principal action in favor of the Pendergasts and against Muns to the extent of such payment. Two facts should here be noted. On August 11, 1925, the day after the deposit by the garnishees with the clerk, a stipulation was entered into, signed and approved by the attorneys for the plaintiffs Pendergasts, by the attorneys for the defendant Muns, by the attorneys for the garnishees, and by Muns and Ingram personally, stipulating that the judgment in favor of Ingram and Muns and against the garnishees, the proceeds whereof the garnishees had deposited with the clerk pursuant to the garnishment against them in the case of Pendergast against Muns, was subject to an attorney's lien in favor of Messrs. Muller, Feyder & Conway, who had been attorneys for Muns and Ingram in their action against the garnishees, wherein said judgment was secured (and who were also the attorneys for Muns as the principal defendant in the instant case brought by the Pendergasts), which stipulation recognized the validity of such attorney's lien and consented that the amount thereof, approximately $4,000, should be paid by the clerk to said attorneys. Such payment was accordingly made and the deposit in the hands of the clerk thereby reduced to approximately $11,000, so that on July 31, 1926, the money deposited with the clerk by said garnishees had been reduced to an amount considerably less than the judgment in favor of the Pendergasts and against Muns whereon it was ordered to be paid and applied. The second fact to be noted is that prior to July 31, 1926, and on July 27, 1926, the principal defendant, Muns, had appealed to this court from the judgment recovered against him by the plaintiffs Pendergasts, upon which appeal he had furnished a cost bond only and had made no attempt to supersede the judgment.
Pursuant to such order of the court made and entered July 31, 1926, and on the same day, or the next day, the clerk paid over to Messrs. Lynch, Doyle & Mahoney, attorneys for the plaintiffs Pendergasts, the balance remaining in his hands of the deposit by the garnishees in the sum of approximately $11,000, and satisfied the judgment of Pendergast against Muns to that extent. It appears that this money was remitted by said attorneys to their clients, the Pendergasts, and $7,500 thereof was used by the Pendergasts to pay attorney's fees of Lynch, Doyle & Mahoney and associate counsel in Iowa for services rendered in the case of Pendergast against Muns for which an attorney's lien had previously been filed on June 26, 1926.
On the appeal taken by Muns from the judgment obtained against him in favor of the Pendergasts, said judgment was reversed by this court (Pendergast v. Muns, 54 S.D. 90, 222 N.W. 607) by an opinion filed December 31, 1928, and the remittitur went down from this court and was filed in the court below on March 7, 1929.
Thereafter and on June 10, 1929, pursuant to order to show cause previously issued, an application was made in the court below by James O. Berdahl, as attorney for the principal defendant, Muns, and as attorney for Ingram, for an order requiring Lynch, Doyle & Mahoney to restore to and redeposit with the clerk the sum of approximately $11,000 which had previously been paid over to them by said clerk on or about July 31, 1926, pursuant to the order of the court under date of July 31, 1926. The application was made on the affidavit of Mr. Berdahl and upon all the files and records in the case of Pendergast against Muns. The affidavit in substance charges that Lynch, Doyle & Mahoney (and particularly Mahoney, upon whose affidavit the order of July 31, 1926, was entered) obtained the default judgment...
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