Porter v. Trapp
| Decision Date | 26 January 1946 |
| Docket Number | 36383.,36273 |
| Citation | 160 Kan. 662,165 P.2d 591 |
| Parties | PORTER et al. v. TRAPP (MID-CONTINENT MANUFACTURER, Inc., et al., Garnishees). |
| Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. Nesmith, Judge.
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. Nesmith, Judge.
Action by E. C. Porter, Ralph M. Rounds, and Vernon Walling copartners, doing business as Aircraft Woodworking Company against Charles E. Trapp on an account stated, wherein judgment was entered against defendant and against Sylvester Allegro, garnishee. From an order denying his motion to vacate the judgment against him, the garnishee named appeals.
Judgment set aside.
Syllabus by the Court.
1. A proceeding in garnishment is a special and extraordinary remedy, and it must be strictly followed and diligently pursued, otherwise it will not be given effect to reach the assets of a debtor in the hands of a third party.
2. It is a prerequisite to the efficacy of a garnishment proceeding that a summons should have been served on the judgment debtor to apprise him of the institution of the garnishment proceeding.
3. The record examined in an action to recover judgment for an indebtedness wherein a concurrent proceeding in garnishment was attempted, but in which the garnishee summons was not served upon the defendant as provided by G.S.1935, 60-943 and held that no service of the garnishee summons having been had upon the defendant, the trial court was without jurisdiction to render any jugment against the garnishee.
Morris H. Cundiff, of Wichita (Dale M. Bryant, of Wichita, on the brief), for appellant.
J Wirth Sargent, of Wichita (W. D. Jochems, Emmet A. Blaes, and Roetzel Jochems, all of Wichita, on the brief), for appellees.
The question for decision in this appeal is the validity of a judgment againt a garnishee.
On January 20, 1944, the plaintiffs commenced their action against the defendant Trapp to recover on an account stated. On the same day a summons was issued for the defendant Trapp. The sheriff's return shows that on the same day he summoned the defendant 'Charles E. Trapp by serving George Squibb, Atty.,' by delivering him a true copy of the summons. On the same day the plaintiffs filed their affidavit for garnishment, naming Sylvester Allegro as one of the garnishees. A garnishee summons was issued on the same day and on that day it was served upon Allegro personally and upon the defendant Trapp 'By Serving Geo. Squibb, Atty Per., 1-20-44.' On January 31, 1944, Allegro filed his affidavit denying liability. On February 8, 1944, the plaintiffs served their notice on Allegro to take issue on his answer. On April 7, 1944, an answer was filed signed in which he admitted the indebtedness as alleged in the petition. The cause was set for trial on April 18, 1944, but it is not clear that either Trapp, Squibb or Allegro had any notice thereof. It was then continued to April 20 and on that day the court rendered jugment in favor of plaintiffs and against Trapp upon the pleadings and, as stated in the journal entry, which showed that the defendant and the garnishee did not appear, plaintiffs introduced evidence and the court found that Allegro was indebted to Trapp in the sum of $1550.93. Thereafter on May 3, 1944, upon motion of plaintiffs, an order was made for Allegro to appear and answer concerning his property. On May 10, 1944, Allegro filed his motion to vacate the judgment against him, the details of which need not be set forth. A hearing was had and on July 21, 1944, the court denied the motion, from which ruling Allegro appealed to this court. Following the trial court's ruling further proceedings were had to require Allegro to appear and answer concerning his property, and an application for the appointment of a receiver was filed. Allegro filed his response to the application for appointment of a receiver and renewed his motion that the judgment against him be set aside. It contained other grounds than were asserted in his first motion, but we do not need to set forth the details. This motion was presented to the court, which heard evidence thereon, and on January 3, 1945, the motion was denied. Allegro duly appealed from this ruling.
In view of our conclusions hereafter expressed, it is not necessary that we discuss the two...
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Jeffers v. Jeffers
...it appears there is any question as to jurisdiction (National Bank of Topeka v. Mitchell, 154 Kan. 276, 118 P.2d 519; Porter v. Trapp, 160 Kan. 662, 165 P.2d 591; Kelly v. Grimshaw, 161 Kan. 253, 167 P.2d 627, 163 A.L.R. 1290; In re Estate of Dix, 161 Kan. 364, 168 P.2d 537). Here, the defe......
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First Nat. Bank of Norton v. Harper
...... in the nature of a pleading and not a final process to. enforce the collection of a judgment. In such connection see. our recent case of Porter v. Trapp, 160 Kan. 662,. 165 P.2d 591, and also Ring v. Palmer, 309 Ill.App. 333, 32 N.E.2d 956. A dormant judgment is too frail to. sustain ......
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Freeman v. Keltner
...was rendered against appellant as garnishee. Of course, such prior service on the principal defendant was necessary. Porter v. Trapp, 160 Kan. 662, 165 P.2d 591. But garnishment summons was served on the principal defendant, a nonresident, by publication, the only method available, before j......
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Nelson v. Thornberg
...that the motion to dissolve is premature because legal service is only required by the time judgment is entered. Porter v. Trapp, 160 Kan. 662, 663, 165 P.2d 591 (1946), and Freeman v. Keltner, 175 Kan. 37, 259 P.2d 228 Under Kansas law, garnishment is an extraordinary remedy and the statut......