Ralston Purina Co. v. King

• Decision Date: 01 February 1937
• Docket Number: No. 18781.,18781.
• Citation: Ralston Purina Co. v. King, 101 S.W.2d 734 (Mo. App. 1937)
• Parties: RALSTON PURINA CO. v. KING (KING MOTOR CO., Garnishee).
• Court: Missouri Court of Appeals

101 S.W.2d 734

RALSTON PURINA CO. v.KING (KING MOTOR CO., Garnishee).

No. 18781.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be published in State Reports."

Action by the Ralston Purina Company against Fred M. King, wherein the King Motor Company was garnished.From a judgment for the plaintiff against the garnishee, the garnishee appeals.

Reversed and remanded, with directions.

Roberts & Tracewell, of Kansas City, for appellant.

Newbill & Brannock, of Kansas City, for respondent.

SPERRY, Commissioner.

Ralston Purina Company, who will be known herein as plaintiff, sued Fred M. King, who will be known as defendant, and obtained a judgment.Garnishment proceedings were instituted against King, an employee of King Motor Company, a corporation.King Motor Company will be referred to as garnishee.

This cause of action was founded on a valid judgment rendered in a justice court, May 28, 1935.No appeal was taken, and on July 2, 1935, execution was issued thereon, which was returned unsatisfied.On August 21, 1935, notice and summons to garnishee was served, to which it answered on September 3d, "Nothing due defendant," and that defendant was heavily indebted to it.Plaintiff filed denial of the answer, admitting, however, that defendant was indebted to garnishee, but alleging that no offset had been taken by it.On September 24, 1935, another notice and summons to garnishee was issued, to which garnishee answered, "Nothing due defendant," and that defendant was heavily indebted to garnishee; and plaintiff filed denial of said answer.Upon a hearing, the justice found against garnishee and it appealed to circuit court, where, a jury being waived, the court found "that at the time of the service of the two garnishments in the Justice of the Peace Court the King Motor Company, a corporation, garnishee herein, was indebted to the defendant, Fred M. King, in the sum of $167.50, * * *" and "that plaintiff do have judgment against the King Motor Company, * * * in the sum of $167.50 and costs in the Justice Court, and costs of appeal and have execution therefor."

Mr. Nelson, secretary of garnishee, testified for plaintiff that defendant is president of King Motor Company, draws a salary of $350 per month, payable on the first of each month, but that no credit was made on account thereof until the last day of the month; that defendant owed garnishee, on August 31, 1935, $2,116.59, and in July prior thereto he owed on the books $2,454; in June prior, $2,212; that he had owed a larger amount, beginning in 1929, and that the amount had fluctuated up and down since then; he had not drawn any salary in cash since July, 1935, which had been paid the 1st of July; and beginning with August, 1935, and continuing until date of trial, which was February 28, 1936, his account had been credited each month with the amount of his salary, $350, and a few small items for gasoline and repairs had been charged against him; that the account against defendant had been about $2,000, a year previous to July, 1935, and had fluctuated up and down since.He first began leaving his salary there in August, 1935; he had left his salary for the months of August, September, October, November, and December, 1935, and January, 1936, totaling $2,100, and owed at the beginning of this period $2,116.But his account on the date of trial showed a balance due garnishee from defendant of $1,411.90.

It was shown that two new automobiles had been delivered to him and his account charged; and that other merchandise had been charged to his account after the summons and notice had been served, the same procedure that had obtained prior to judgment.After judgment was rendered and execution issued thereon, defendant drew no more salary checks, but they were credited to his account, although prior to that time, including the month of July, he always drew his salary checks in full on the first of the month.Perhaps, as president and manager, he caused the secretary to change the method of bookkeeping after execution was issued in July, and, instead of drawing cash, he drew merchandise.This inference could have been drawn by the trial judge.

The rule is that, where the defendant can maintain no action against garnishee for the money garnished in his hands, the plaintiff can maintain none.State ex rel. Kennedy et al. v. Harris, 228 Mo.App. 469, loc. cit. 475, 69 S.W.(2d) 307(K.C.);...