State Bank of Dodge City v. McKibben

Decision Date10 July 1937
Docket Number33455.
Citation70 P.2d 1,146 Kan. 341
PartiesSTATE BANK OF DODGE CITY v. McKIBBEN et al.
CourtKansas Supreme Court

Syllabus by the Court.

The statute providing that subsequent proceedings against garnishee shall be the same as in cases of attachment as far as possible means that, after prior statutes relating to procedure have been properly invoked, subsequent proceedings shall conform to statutory procedure as in cases of attachment as far as applicable (Gen.St.1935, 60-34,107 to 60-34,109, 60-901 et seq.).

Under statutes and constitutional guaranties of due process service of summons or other process on judgment debtor to apprise him of institution of garnishment proceedings is prerequisite to efficacy of garnishment (Gen.St.1935 60-34,107 to 60-34,109, 60-901 et seq.; Const.Kan. Bill of Rights § 18; Const.U.S. Amend. 14).

Under constitutional guaranties of due process, any judicial process can be made effective only on sufficient notice to parties concerned (Const. Kan. Bill of Rights, § 18; Const.U.S. Amend. 14).

Garnishment proceedings which had lain dormant for five years without action by court or counsel were properly quashed, where plaintiff had failed to comply with statutes by service or summons or other adequate notice on debtor, or by requiring answer within 20 years after order in garnishment was issued or by motion for judgment on garnishee's belated answer (Gen.St.1935, 60-34,107 to 60-34,109, 60-901 et seq.; Const Kan. Bill of Rights, § 18; Const.U.S. Amend. 14).

A judgment creditor which agreed at time of service of garnishment summons, not to resort to legal process to enforce judgment other than execution to keep judgment alive during life of contract which bound judgment debtor to make periodic payments, and which accepted debtor's irregular payments under contract after third person had acquired debtor's interest in suit against garnishee, was not entitled to resort to garnishment after judgment had been obtained in action against garnishee (Gen.St.1935, 60-940 et seq.).

A judgment creditor which had commenced garnishment proceeding, but which failed to pursue remedy for five years, during which third person purchased judgment debtor's right in action against garnishee and prosecuted such action to successful conclusion at her own expense, was estopped to claim interest in proceeds of judgment by virtue of garnishment proceeding (Gen.St. 1935, 60-940 et seq.).

In an appeal from a judgment sustaining a motion to quash certain garnishment proceedings which had lain dormant for five years without action by court or counsel, the record examined, and held the motion was properly sustained because of plaintiff's failure to serve summons in garnishment or other adequate notice on the debtor; its failure to submit interrogatories for the garnishee to answer; its failure to require an answer within twenty days after the order in garnishment was issued; its failure to move for judgment on the garnishee's belated answer; and because of other legal and equitable considerations stated in the opinion.

Appeal from District Court, Ford County; George R. Gould, Judge pro tem.

Action by State Bank of Dodge City, succeeded by Fidelity State Bank of Dodge City, against Clay McKibben, wherein Peggy McKibben interpleaded. From an adverse judgment, plaintiff appeals.and prosecuted such action to successful conclusion at her own expense, was estopped to claim interest in proceeds of judgment by virtue of garnishment proceeding. Gen.St.1935, 60-940 et seq.

Albert Watkins and Horace N. Watkins, both of Dodge City, for appellant.

Howard Rooney, of Dodge City, and Walter F. Jones, C. E. Chairant, and Eustace Smith, all of Hutchinson, for appellees.

DAWSON Chief Justice.

This is an appeal from a judgment sustaining a motion to quash certain garnishment proceedings instituted by the plaintiff bank in 1931 after it had obtained judgment against the defendant Clay McKibben. The person garnisheed was Reed Byers, alleged debtor of McKibben. Byers died testate in Missouri in 1935; and the Commerce Trust Company, a Missouri corporation, and Carl Van Riper, Esq., of Dodge City, were appointed and qualified as administrators of his estate with the will annexed. The interpleader, Peggy McKibben, sister of defendant, acquired all right to his claim against Reed Byers in 1931. Whether her right thereto was superior to that of the plaintiff bank under its garnishment proceedings is the principal question in this lawsuit.

Various features of this litigation have already received the consideration of this court. State Bank v. Byers, 120 Kan. 8, 242 P. 461; McKibben v. Byers, 138 Kan. 216, 25 P.2d 357.

The material facts in brief were these:

In 1925 the plaintiff bank recovered judgment against Clay McKibben for $9,405.26. Successive executions thereafter issued were returned unsatisfied. Some time in 1930, Clay McKibben instituted an action in the district court of Ford county against Reed Byers for an accounting pertaining to certain business transactions between them. While that action was yet pending and undetermined, on June 11, 1931, an affidavit in garnishment was filed on behalf of the plaintiff bank directed to Reed Byers as garnishee, which recited its recovery of a money judgment against Clay McKibben, and that execution had failed to satisfy the same; and--

"That said plaintiff has good reason to believe, and does believe, that Reed Byers of the County of Ford and State of Kansas, has property of the defendant in its [his] possession or under its [his] control, or is indebted to said defendant.

"Wherefore said plaintiff asks that a garnishee order issue to said Reed Byers requiring him to answer the interrogatories of said plaintiff concerning such property and indebtedness, a copy of which is hereto attached."

Pursuant thereto a garnishment summons was served on Reed Byers containing this mandate: "Now Therefore, You [Reed Byers] are hereby respectively ordered and required to answer, on or before the 6th day of July, A. D. 1931, all interrogatories that may be propounded by the said plaintiff and be served upon you concerning such indebtedness and property, and with said answers return also this order and said interrogatories."

No service of this garnishment order was had on the principal defendant, Clay McKibben; no interrogatories were attached to the garnishment affidavit, and none were served on Byers, the garnishee; but on July 8, 1931, Byers did file an answer in which he averred that he was not indebted to Clay McKibben; that he had no property nor effects belonging to him; but he added that he was defendant in an action wherein Clay McKibben, plaintiff, was suing him to recover an amount unknown; that this action was not then completed; that he was not and would not be liable to McKibben "unless or until a judgment is rendered in said action establishing a liability which affiant now denies."

Nothing more was done in reference to this garnishment proceeding for about five years, after which the plaintiff bank began to assert rights under it which will be considered when the other pertinent features of this litigation are brought down to that time.

On August 2, 1930, the plaintiff bank and Clay McKibben entered into a written contract in which it agreed to accept $2,500 in full settlement of its judgment against McKibben, which sum was to be paid in installments of $50 per month, and the total amount was to be paid in three years. The agreement further provided: "*** that, so long as payments are kept up and made in the manner herein provided, no levy of execution or other legal process or proceeding shall be resorted to or used against second parties, or any of them, and none of their property or business shall be interfered with in any way; except that first party shall have the right to issue execution on a certain judgment against Clay McKibben in case No. 7971 in the District Court of Ford County, Kansas, when necessary to keep said judgment from becoming dormant, but first party agrees to do no more with such execution than may be necessary to keep said judgment from becoming dormant. If the second parties shall default in the payment of the monthly or yearly sums above specified or any part thereof the first party shall be at liberty to resort to legal process or proceedings to enforce its claims against second parties, the same as if this agreement had not been made."

McKibben paid $75 on this contract the day it was executed. On June 22, 1931, the bank caused another execution to be issued "to keep said judgment from becoming dormant," and on the same day McKibben paid $100 on this contract. Afterwards he made two payments on this contract thus: October 26, 1931, $50; December 9, 1931, $50.

On July 29, 1931, McKibben sold and assigned his cause of action against Reed Byers to his sister Peggy McKibben interpleader, to satisfy certain obligations and debts he owed her. She had no notice of the garnishment proceedings. Thereafter the expenses of the action between Clay McKibben and Reed Byers were borne by Peggy McKibben...

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