Purma v. Stark, 48868

• Citation: 224 Kan. 642,585 P.2d 991
• Decision Date: 28 October 1978
• Docket Number: No. 48868,48868
• Parties: Dr. Charles J. PURMA, II, P. A., Appellant, v. Patricia STARK, Appellee, and Buddie Stark, Terry Stark, and Larry Stark, Individually and as a partnership d/b/a S & S Electric, Intervenors, Appellees.
• Court: Kansas Supreme Court

Page 991

585 P.2d 991

224 Kan. 642

Dr. Charles J. PURMA, II, P. A., Appellant, v. Patricia STARK, Appellee, and Buddie Stark, Terry Stark, and Larry Stark, Individually and as a partnership d/b/a S & S Electric,

Intervenors, Appellees.

No. 48868.

Supreme Court of Kansas.

Oct. 28, 1978.

Syllabus by the Court

1. The garnishment of a joint bank account, whether held in joint tenancy or tenancy in common, reaches only the interest actually owned by the garnishment debtor.

2. There is a rebuttable presumption that the joint owners of a joint bank account own the same in equal ownership. Such presumption may be overcome by parol evidence.

3. The burden of proof on a claim the account is owned other than equally between the cotenants lies with the party asserting such claim.

Walter C. Williamson, of Kidwell & Williamson, Chartered, Wichita, argued the cause, and Randy S. Stalcup, Wichita, of the same firm, was with him on the brief for appellant.

John Shirley, of Wallace, Brantley & Shirley, Scott City, argued the cause, and James W. Wallace and Keen K. Brantley, Scott City, of the same firm, were with him on the brief for appellee and intervenors.

PRAGER, Justice:

This is an appeal from a judgment of the district court in a garnishment proceeding denying the garnishment creditor's claim to funds in a joint bank account. The principal action was brought by the plaintiff-appellant, Dr. Charles J. Purma, II, against the defendant-appellee, Patricia Stark, to recover damages for conversion of funds allegedly taken by the defendant from the plaintiff's bank account during a period of time when the defendant was employed by the plaintiff. The plaintiff, Purma, obtained a judgment against defendant, Patricia Stark, in August of 1975 in the amount of $7,058.84 plus interest. In an attempt to collect this judgment, the plaintiff ran a garnishment on a joint checking account in the First State Bank of Leoti, Kansas, in January of 1976. This joint bank account stood in the names of Buddie Stark, Terry Stark, Larry Stark, and the defendant, Patricia Stark. Buddie Stark, Terry Stark, and Larry Stark intervened in the garnishment proceedings claiming that the debtor, Patricia Stark, had no beneficial interest in the joint bank account. After a full evidentiary hearing, the district court held that the defendant, Patricia Stark, had no equitable interest in the bank funds and denied the plaintiff's claim to the funds.

Briefly stated, it was the claim of the intervenors that the joint bank account was the business account of S & S Electric, a partnership consisting of Buddie Stark, Terry Stark, and Larry Stark. Patricia Stark was the wife of Buddie Stark. Terry and Larry Stark were their two sons. At the trial, Terry Stark testified that he had opened the partnership account in the First State Bank of Leoti and, at that time, told the bank teller that he wanted the bank account under the ownership of himself, his father, and his brother, but that they wanted to give his mother authority to sign checks. Terry stated that he authorized his mother to sign partnership checks because "it was much easier for her to take care of the check book and she could write a check for freight or material if we were out of town on a job. We ran our business out of the garage at my father's house." Buddie Stark testified that the partnership had authorized Patricia Stark to sign checks, not as a partner, but for freight bills or whatever bills had to be paid. Patricia Stark, on occasion, would write checks to pay the personal expenses of the Buddie Stark home and also to pay for Terry's personal expenses. The testimony was undisputed that such expenses were listed in the partnership ledger as personal deductions and charged against the partner who incurred the expense. Although there was some evidence that Patricia Stark may have deposited wages received by her from Dr. Purma in the account as late as June of 1973, she had not received any income since that time. The testimony of the intervenors' witnesses was to the effect that all funds deposited in the partnership account were derived solely from the business receipts of S & S Electric.

The trial court, in entering judgment in favor of the intervenors, made the following findings of fact and conclusions of law:

"1. That under the circumstances the burden of proof is upon the intervenors to show that Patricia Stark did not own any part of the account involved, was not a partner and had no beneficial interest in the account which was subject to garnishment.

"2. That Mrs. Stark did not own any part of the account involved, was not a partner, had no beneficial interest in the account and that such interest as she did have was the interest of a wife or mother, being allowed to draw family expense checks upon the account.

"3. That S & S Electric is partnership with the partners being Larry Stark, Terry Stark and Bud Stark.

"4. That the...