Shull v. Missouri Pac. Ry. Co.

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1086,221 Mo. 140
• Parties: SHULL v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

119 S.W. 1086

221 Mo. 140

SHULL v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. APPEAL AND ERROR (§ 878)—REVIEW— PARTIES ENTITLED TO ALLEGE ERROR—APPELLEE.

The respondent not having appealed from an adverse ruling declaring an act unconstitutional, its correctness will not be considered.

2. GARNISHMENT (§ 231)—OPERATION AND EFFECT—DEBT—EFFECT AS BETWEEN DEFENDANT AND GARNISHEE.

The court can only render a conditional judgment against a defendant who pleads the pendency of garnishment proceedings for the same debt.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by Minor Shull against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy and Edw. J. White, for appellant.

GRAVES, J.

Plaintiff sues the defendant for wages as section foreman for 59 days, beginning August 30, 1903, and ending October 27, 1903, at the rate of $1.50 per day, aggregating $88.50. By his second amended petition, upon which the case was tried, he further pleads that since the commencement of the suit the defendant had paid on said account the sum of $45, leaving a balance of $43.50. After these allegations, showing that defendant was a railway corporation and plaintiff its employé, and the service and wages, the petition thus concludes: "For which sum the plaintiff prays judgment, and asks that the same may be doubled under the act of the General Assembly, entitled `An act to require owners and operators of railroads to pay their employés once in every thirty days in lawful money of the United States, and providing for the violation thereof.' Sess. Acts 1903, at page 220. Wherefore plaintiff prays judgment for the sum of $87, it being double the amount earned, with 6 per cent. interest from the 15th day of November, 1903, and for costs of this suit."

Defendant's answer may be summarized thus: First, it admits the employment of plaintiff, and that he had not as yet been paid in full. Denies that it owes defendant $43.50 or any other sum, but alleges that it conditionally owed the plaintiff $32.95; that plaintiff had been sued on attachment in Pettis county, Mo., by G. A. Dircke, before John B. Hughes, J. P., on October 13, 1903, wherein judgment was demanded in the sum of $187.65, in which said suit this defendant had been sued as garnishee, and judgment entered against said defendant in said court as garnishee; that defendant had appealed from said judgment to the circuit court of Pettis county, Mo., in which court defendant had moved the court to dismiss said garnishment proceedings, because the amount claimed was less than $200, which said motion was overruled by the circuit court of Pettis county; that said cause is still pending in said circuit court, but that Dircke, the plaintiff therein, had performed all necessary legal conditions necessary to entitle him to a final judgment against this defendant (the garnishee) in the said sum of $32.95; that the plaintiff herein is only entitled to a conditional judgment for $32.95, to be effective upon the full release and discharge of defendant from said garnishment proceeding. Secondly, defendant denies that plaintiff is entitled to double the amount of the wages due him by virtue of the act of 1903, pleading the unconstitutionality of said law in appropriate manner, and pointing to the constitutional provision, both state and national, alleged to be violated thereby. By reply, the plaintiff avers that if there was such a proceeding by Dircke against plaintiff before John B. Hughes, Justice of the Peace in Pettis county, as averred by defendant in its answer, then said proceeding was void and of no force under section 3447, Rev. St. 1899, and that if defendant answered to said garnishment proceeding it was in violation of section 3448, Rev. St. 1899 (Ann. St. 1906, p. 1981). The reply then admits that, at the commencement of the suit, the amount due him from the defendant was $32.95, and says said sum is still due him, and asks that he have judgment for double the amount as provided by the acts of 1903, supra, and prayed judgment for $65.90.

Trial was had before the court without the intervention of a jury. Plaintiff to sustain his case introduced a stipulation signed by counsel for both parties, by which it was agreed that plaintiff had performed the services mentioned in his petition and that there was a balance due of $32.95. The plaintiff then rested his case.

The defendant then introduced in evidence the record and files in the case of C. A. Dircke v. Minor Shull, in the justice of the peace Court of John B. Hughes, in Pettis county, and also those in the circuit court. The proceedings in the justice's court are regular, and show a default judgment against the Missouri Pacific Railway Company, garnishee, in the sum of $187.65 and costs. And this record also shows an appeal by said garnishee to the circuit court of Pettis county. The records in the Circuit Court show that the Missouri Pacific Railway Company filed its motion to dismiss said garnishment proceeding against it, because upon the face of the transcript, it appeared that the amount sued for was less than $200, and that the garnishee had been served with garnishment notice long prior to the rendition of any judgment against Minor Shull, the defendant in such case. This record also shows the interrogatories filed in the Pettis circuit court by Dircke, and also a motion for judgment by Dircke, which motion is to the effect following: "Comes now plaintiff, C. A. Dircke, and moves the court that whereas plaintiff having heretofore filed interrogatories in this cause, and the defendant, the Missouri Pacific Railway Company, garnishee, having failed to exhibit and file its answer thereto on oath within six days as required by section 3446. Therefore plaintiff moves the court that the plaintiff be given judgment by default against said Missouri Pacific Railway Company, garnishee, as provided in said section 3446 and section 3449, Revised Statutes of Missouri of 1899. And plaintiff asks that such judgment be rendered in his favor notwithstanding the provisions of section 3447 and section 3448 of Revised Statutes of Missouri 1899, which last-mentioned statutes are unconstitutional, being in conflict with section fifty-three of article 4 of the Constitution of the state of Missouri, which provides that `the General Assembly shall not pass any local or special law,' and that `the General Assembly shall not pass any local or special law granting to any corporation, association or individual any special or exclusive right, privilege or immunity.'" It was then admitted that the Pettis county case was still pending at the time of the trial of this cause.

Plaintiff requested no declaration of law, and none were given for him. For the defendant the court gave the following: "The court declares that the Session Laws of Missouri for 1903, p. 220, giving double damages against a railroad company for a failure to pay its employés every thirty days, is unconstitutional and void, being contrary to section 30, art. 2, Constitution of Missouri, and contrary to section 53, art. 4, of the Constitution of Missouri, and contrary to the fourteenth amendment of the Constitution of the United States, in that it deprives the defendant and its employés of their property without due process of law,...