Rafter v. Hurd

• Decision Date: 03 July 1931
• Docket Number: 30,011
• Citation: 300 P. 1078,133 Kan. 505
• Parties: AMY O. RAFTER, Appellant, v. ROBERT J. HURD, JAMES T. RAFTER and THE RAFTER FARM MORTGAGE COMPANY, Appellees
• Court: Kansas Supreme Court

300 P. 1078

133 Kan. 505

AMY O. RAFTER, Appellant, v. ROBERT J. HURD, JAMES T. RAFTER and THE RAFTER FARM MORTGAGE COMPANY, Appellees

No. 30,011

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Jackson district court; HORACE, T. PHINNEY, judge.

SYLLABUS

SYLLABUS BY THE COURT.

GARNISHMENT--Service of Defendant as Garnishee. Where the defendant and its attorney of record were served with garnishment summons as garnishees instead of being notified by summons or otherwise under the provisions of R. S. 60-943, that other parties had been served as garnishees in the case, the garnishment proceedings were properly discharged as to them, there being no foundation for such service, and it being inconsistent with such proceedings.

F. G Drenning, of Topeka, for the appellant.

M. A. Bender, of Holton, for the appellees.

OPINION

HUTCHISON, J.:

The appeal in this case is from an order dismissing and dissolving the garnishment proceedings and discharging the garnishees from the requirement of making answers. The grounds of the motions as stated in the first motion are "for the reason that the same is not authorized by statute," and as stated in the second motion are "for the reason that the action is not upon any final judgment or in an action to recover damages founded upon contract, express or implied."

The appellant has most ably and convincingly briefed these legal propositions and applied them to the allegations of the petition, but from the brief of the appellee we learn that defects and irregularities in the issuance and service of garnishment summons were the immediate reasons for the action of the trial court in dismissing the garnishments, rather than the fundamental features expressed in the motions and argued by the appellant, the motions being sufficiently comprehensive to include other defects and irregularities.

The briefs and explanations of counsel convince this court that a serious confusion exists in this appeal by the use of general instead of specific and definite terms. There are a number of garnishees made such, and many of them served or attempted to be served at different times.

The first motion, filed October 31, 1930, is general and all-inclusive in its terms and could refer to all parties made garnishees prior to its being filed. The second motion, filed November 15, 1930, is definite and names the parties against whom it moves that the proceedings be dismissed. The journal entry is general and could include all the garnishments issued in the case. Appellant urges her appeal, applying the law to the facts as to certain of the garnishees, which leads the appellee to state a limitation as to certain garnishees only, whom the motions were intended to cover or reach, disclaiming any intention to attack the garnishment proceedings as to the other garnishees. This greatly simplifies the matter. The first motion is said to apply only to the garnishees A. L. Hoover, Myrtle Wright and J. Arthur Myers, Myers being designated as attorney of record for Hoover and Wright. Service was had on J. Arthur Myers and no service has been made upon either Hoover or Wright.

The motion was made and filed by the defendants, and not by the garnishees, so that there is no appearance by them on account of the motion, and as to the two not served, they need no dismissal or discharge of proceedings. They are in no way obligated or concerned in the proceedings until they are served. Neither are the defendants affected by their being so named, if they are not later served as garnishees. As to J. Arthur Myers, both individually and as attorney for Hoover and Wright, the situation is different. He filed his answer as garnishee in...