St. Louis & S. F. R. Co. v. Crews
| Decision Date | 14 September 1915 |
| Docket Number | 3929. |
| Citation | 151 P. 879,51 Okla. 144,1915 OK 623 |
| Parties | ST. LOUIS & S. F. R. CO. v. CREWS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action by a plaintiff against a nonresident defendant, who is served with notice of the same only by publication, it is the duty of a garnishee therein to notify such principal defendant of such garnishment proceedings if able to do so and, also, to interpose in behalf of such principal defendant any defense thereto of which he is cognizant and which he is able to make.
(a) Where such action is upon a claim or debt assigned to such plaintiff in violation of a statute of another state inhibiting such assignment for the purpose of attachment garnishment, or other process, outside of such other state when the creditor, the debtor (being a citizen of such other state), and the person or corporation owing the money intended to be reached by the proceedings in attachment or garnishment are all within the jurisdiction of such other state, so that the res may be as well seized in such other state if not exempt by law, such violation of such statute of such other state is a defense to such garnishment proceedings and should be interposed by such garnishee.
(b) As in such cases, the res is intangible and cannot be impounded in either state otherwise than by summons or like process the garnishment process being a summons, the same is regarded as impounded in that state in which such process is first served or jurisdiction thereof first acquired; and, upon the principle of "qui prior est tempore potior est jure," the pendency in another state of a prior action by such principal defendant, as plaintiff, against such garnishee, as defendant, is a defense against such garnishment proceedings and should be interposed by such garnishee.
(c) A garnishee who has not given such notice and interposed such defenses is guilty of negligence of duty to his creditor (such principal defendant) and will not be allowed to set up payment of a judgment against him in such garnishment proceedings as a defense to an action by such creditor against him for the debt so garnisheed.
(d) Such garnishee, to be entitled to set up payment of such judgment against him in such garnishment proceedings as a defense to an action against him by such creditor for the debt so garnisheed, should allege and prove that he discharged his duty to such creditor in respect to giving such notice and making such defenses in such garnishment proceedings.
Sess. Laws 1910, § 2, c. 14, p. 19 (section 2912, Rev. Laws 1910), inhibiting any assignment of a claim or debt for the purpose of attachment, garnishment, or other mesne process, outside of this state, when the creditor, the debtor (being a citizen of this state), and the person or corporation owing the money intended to be reached by such process are all within the jurisdiction of this state, is within the police power of the state and is constitutional and valid to the extent of such inhibition.
(a) As to whether the further provision in said section that, in such situation of all such parties, any assignment of a claim or debt "which is thereafter attempted to be collected out of the wages or personal earnings of the debtor, in courts outside of the state of Oklahoma," is prohibited, is constitutional and valid, is not determined; but its constitutionality is doubted.
A judgment against a garnishee in a court that did not acquire jurisdiction of the person of the principal defendant, which does not recite that such garnishee disclosed any defensive matter or any fact other than an admission of his indebtedness to the principal defendant, is not, as against such principal defendant and in favor of such garnishee, an adjudication of any issue as to whether such garnishee discharged his duty to such principal defendant in such garnishment proceedings in respect to notice and defenses.
(a) Such judgment would not be accorded faith or credit as such adjudication in the state in which it is rendered, nor in any other state.
(b) A refusal of a court of a state other than the one in which it was rendered to give such judgment effect as an adjudication of such issue between the garnishee and the principal defendant is not a denial of the same the full faith and credit to which it is entitled under section 1, art. 4, of the federal Constitution and section 905, Rev. St. U.S. (U. S. Comp. St. 1913, § 1519).
In the absence of Congressional enactment and subject to section 3999, St. 1893 (section 4772, Rev. Laws 1910), the general rules of pleading and evidence obtain in ascertaining in one state what faith and credit is given a judgment in the courts of another state in which such judgment was rendered.
Commissioners' Opinion, Division No. 1. Error from District Court, Pontotoc County; Tom D. McKeown, Judge.
Action by L. G. Crews against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H. Foster, both of Oklahoma City, for plaintiff in error.
Z. B. Sanders, of Ada, for defendant in error.
The plaintiff in error will be designated as "defendant," and defendant in error as "plaintiff," in accord with their respective titles in the trial court.
This is an action for debt commenced on July 27, 1910, by plaintiff, a resident citizen of Oklahoma, against defendant, a Missouri railway corporation owning and operating a line of its road in Pontotoc county, Okl. The defendant, on September 22, 1910, answered by a general denial; but on September 29, 1911, the day of the trial, it filed an amended answer admitting said indebtedness to the amount of $406.20, less a credit of $295.50 claimed on account of a judgment rendered against it, as garnishee, on May 13, 1911, by a justice of the peace of Wyandotte county, Kan., in an action commenced before him on January 16, 1911, by L. A. Palmer, a resident of Kansas, as plaintiff, against the plaintiff in the instant case as defendant, who, being a nonresident of Kansas, was served with notice thereof only by publication, upon a claim for house rent, labor performed, money had and received, and goods sold and delivered, assigned to said Palmer by one Henson, a resident of Oklahoma, in violation, it appears, of Session Laws of Oklahoma of 1910, § 2, c. 14, p. 19 (section 2912, Rev. L. 1910), if the same is a constitutional and valid law, unless said Kansas judgment in effect negatives and is conclusive as to such violation.
As predicate for its said claim of said credit, the defendant, in said amended answer, alleged, in substance and effect, the following and no other pertinent facts: That, upon being served with garnishment process in said case in said Kansas court, this defendant, as garnishee there, on April 14, 1911, answered admitting its indebtedness to this plaintiff (defendant in that case) to the amount of $406.20; that thereupon and on the same day said Kansas court found that this plaintiff (the defendant there) could not be personally served with summons in Kansas and continued that case for publication to May 13, 1911, a period of 29 days; that on May 13, 1911, said Kansas court found that due and legal publication service had been made on this plaintiff (defendant there) and gave judgment against him for $284.30 and costs taxed at $11.20, making a total of said $295.50, which amount this defendant (garnishee there) was by said judgment ordered to pay into said court; and that this defendant, as such garnishee, paid that amount into that court as so ordered to do.
Plaintiff, in reply thereto, alleged:
"Comes now the plaintiff, and, for reply to defendant's affirmative allegation set up in the defendant's answer, pleads over against the defendant herein, wherein it sets up a judgment rendered in favor of one L. A. Palmer, from the justice court of Wyandotte county, Kan., and says that the plaintiff Palmer in that action is a nonresident of the state of Oklahoma, and a resident of the state of Kansas, and that he is the assignee of one W. A. Henson, a resident of the county of Pontotoc, state of Oklahoma, which assignment was had and suit brought since the 8th day of June, 1910, which judgment is void, all of which is done with intent to cheat and defraud this plaintiff."
No question as to the sufficiency of this reply to allege a right under, and thus raise the question of the constitutionality and effect of the said section 2912, Rev. L. 1910, is raised.
The court, in the instant case, over plaintiff's very comprehensive objection, including a denial of the jurisdiction of the Kansas court, admitted in evidence in proof of defendant's said allegations the said Kansas court judgment, which, in substance and effect, recites all said facts alleged by plaintiff, except the fact of defendant's payment of said $295.50 into the Kansas court as thereby required to do, and no other fact is thereby shown; but, in instructing a verdict for the plaintiff to the amount of $464.95, with interest from May 1, 1910, at 6 per cent., the court denied the defendant's claim of credit to the amount of said $295.50 in words as follows:
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