Simmons v. Missouri Pacifio R.R. Co.

• Decision Date: 24 November 1885
• Citation: 19 Mo.App. 542
• Parties: J. T. SIMMONS, Respondent, v. THE MISSOURI PACIFIO RAILROAD COMPANY, GARNISHEE, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 542

J. T. SIMMONS, Respondent,

v.THE MISSOURI PACIFIO RAILROAD COMPANY, GARNISHEE, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 24, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed with ten per cent. damages.HENRY G. HERBEL, for the appellant: This case having originated in a justice's court, his jurisdiction must affirmatively appear by his record. Matson v. R. R. Co., 80 Mo. 229; Keane v. Bartholow, 4 Mo. App. 510; Bersch v. Schneider, 27 Mo. 101. As defendant, Lavelle, was not personally served with process, and as jurisdiction of his person could only be acquired by constructive notice, a strict compliance with every requirement of the statute must be observed in order to divest his interest in the property herein sought to be judicially alienated. Drake on Attachments, sects. 692, 693; Quigley v. Bank, 80 Mo. 297; Eppstein v. Salorgne, 6 Mo. App. 354; Schell v. Leland, 45 Mo. 289. And the garnishee must, for its own protection, see that jurisdiction of the defendant has been properly acquired by the court. McCloon v. Beattie, 46 Mo. 392; Drake on Attachments, sect. 695. The signing of an attachment bond, as surety, is not an act within the scope of a bank cashier's ordinary duties and he can not thereby bind the bank. West St. Louis Savings Bank v. Shawnee Bank, 95 U. S. 557 (XXIV. [Law Ed.] 490); Walker v. St. Louis National Bank, 5 Mo. App. 214.

MCINTIRE & LOEVY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The plaintiff brought suit before a justice of the peace against Charles Lavelle, by attachment, and caused the attachment to be levied by garnishment, upon the goods and chattels, rights, and credits of the defendant, in the hands of the Missouri Pacific Railway Company, and summoned the latter as garnishee. The proceedings before the justice resulted in a judgment in favor of the plaintiff against the defendant, and also against the garnishee, from which the garnishee appealed to the circuit court. On trial in the circuit court de novo, judgment was again rendered against the garnishee, and it has appealed to this court.

I. The garnishee resists the proceeding upon the ground, among others, that the justice had no jurisdiction to award the attachment. This is a question which the garnishee is entitled to raise, and which in an appropriate case, he is bound to raise for his own protection. A judgment against the defendant in an attachment proceeding, which is void for want of jurisdiction, will not sustain a judgment against the garnishee such as will protect him against a subsequent action for the money brought by the defendant in the attachment. The garnishee, therefore, has the right to complain of a judgment against him rendered in a proceeding by attachment wherein the court had no jurisdiction, and to seek its reversal, although he may stand indifferent between the parties. McCloon v. Beattie, 46 Mo. 391.

One of the grounds upon which the garnishee rests his objection to the jurisdiction of the justice of the peace is that the bond given for the attachment was a nullity. The bond on its face purports to be executed by the Laclede Bank by its cashier as surety, and is signed and sealed by the latter with the addition of the word “cash,” meaning cashier. It does not appear whether the Laclede Bank is a corporation or a voluntary association, or what it is. If it is a corporation, organized under our laws relating to banking corporations, it has no power to become surety for the accommodation of a third party in a bond given in a judicial proceeding. But it does not appear from this that the bond is void on its face, because it is a rule of law that one who assumes to enter into on obligation on behalf of an incapable principal binds himself personally. Fay v. Richmond, 18 Mo. App. 355. For aught that appears, then, the Laclede Bank may be an incorporated bank, as most of our banking institutions are, and if so, the bond may be good as the individual bond of the cashier.

II. This brings us to the next objection to the jurisdiction, which is that publication was not made in conformity with law. This is not a good objection to the jurisdiction when made by a garnishee. The objection of the garnishee to the jurisdiction of the court in the principal proceeding stands on the same footing as the objection of any third person, questioning the validity of the proceeding in a collateral way. If the question were before us in a direct proceeding, that is, on an appeal or writ of error prosecuted by the defendant in the attachment suit, we might be obliged to hold that the defective publication, if such it should be found to be, would be ground for reversing the judgment. But it is settled by several decisions of our supreme court, that jurisdiction in attachment proceedings is acquired by the levy of an attachment regularly issued, and is not ousted by the fact that the subsequent publication was not regularly...