State ex rel. Auchincloss, Parker & Redpath v. Harris

• Decision Date: 13 March 1942
• Docket Number: 37889
• Citation: 159 S.W.2d 799,349 Mo. 190
• Parties: State of Missouri at the relation of Auchincloss, Parker & Redpath, Inc., a Corporation, and Columbia Aircraft Corporation, a Corporation, Relators, v. Brown Harris, Judge of the Sixteenth Judicial Circuit of the State of Missouri, and as such Judge of Division 4 of the Circuit Court of Jackson County
• Court: Missouri Supreme Court

159 S.W.2d 799

349 Mo. 190

State of Missouri at the relation of Auchincloss, Parker & Redpath, Inc., a Corporation, and Columbia Aircraft Corporation, a Corporation, Relators, v. Brown Harris, Judge of the Sixteenth Judicial Circuit of the State of Missouri, and as such Judge of Division 4 of the Circuit Court of Jackson County

No. 37889

Supreme Court of Missouri

March 13, 1942

Provisional rule made absolute as to relator Auchincloss Parker & Redpath, Inc., and discharged as to relator Columbia Aircraft Corporation.

Howell Jacobs & Howell and Scott R. Timmons for relators.

(1) The petition filed by the Aviation Manufacturing Corporation in the court below as a judgment creditor is clearly a Bill in Equity, and asks for relief that only a court of equity can grant. Kinsella v. Marquette-Easton Finance Corp., 28 S.W.2d 427; Buckley v. Maupin, 125 S.W.2d 820; Jackman v. St. Louis & Hannibal R. Co., 304 Mo. 319; Barrie v. United Rys. Co., 138 Mo.App. 557; Johnson v. United Rys. Co., 247 Mo. 326. (2) Said proceedings in the court below being a proceeding in equity attachment and garnishment will not lie, and therefore, the court below had no jurisdiction to issue either writs of attachment or garnishment. Attachment and garnishment are purely legal remedies governed solely by statute. State ex rel. McIndoe v. Blair, 238 Mo. 132; Beyer v. Trust Co., 63 Mo.App. 521; German and Reed v. Universal Oil Products Co., 6 F.Supp. 53; Thompson v. Terminal Shares, Inc., 14 F.Supp. 459; Bryant v. Duffy, 128 Mo. 818. (3) The Bill in Equity in the court below alleges that one of the defendants therein, Auchincloss, Parker & Redpath, Inc., was a nonresident Delaware corporation, and further alleges that said Auchincloss Company owned shares of stock in its co-defendant company, Columbia Aircraft Corporation, which petition also alleges is a nonresident Delaware corporation. These shares of stock are not subject to attachment in the Circuit Court of Jackson County, Missouri, and the attempted seizure of said stock under said void attachment is wholly void, and said circuit court had no jurisdiction to order the seizure thereof. Sec. 1457, R. S. 1939; Armour Bros. Banking Co. v. St. Louis Natl. Bank, 113 Mo. 12; Richardson v. Busch, 198 Mo. 174, 122 A. L. R. 338. There is no contention whatever in the Bill in Equity in the court below that either the Auchincloss Company or the Columbia Company had become domesticated in Missouri. (4) The court being without jurisdiction on said Bill in Equity to issue writs of attachment and garnishment, and the court having no authority to attempt to seize by attachment said stock owned by a nonresident corporation in another nonresident corporation, the special entry of appearance of the defendant Auchincloss, Parker & Redpath, Inc., in the court below setting out that said court had no jurisdiction over said defendant, and had no jurisdiction nor authority to attach said stock, is clearly a special appearance of said Auchincloss Company, and not a general appearance, although said defendant asked also that said void writ of attachment be quashed. Davis v. Cleveland, C. C. & St. L. R. Co., 217 U.S. 157, 30 S.Ct. 463, 54 L.Ed. 708; Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053; McCartney v. McCartney, 128 Neb. 671, 260 N.W. 184; Rabor v. Baer, 107 W.Va. 594, 149 S.E. 675; Crabtree v. Aetna Life Ins. Co., 111 S.W.2d 103; 55 A. L. R. 1121, and note; 129 A. L. R. 1240, and note. And, the cases relied upon by plaintiff in the court below, to-wit, Whiting v. Budd, 5 Mo. 443; Evans v. King, 7 Mo. 411; Withers v. Rodgers, 24 Mo. 340; and Wayne Mfg. Co. v. Challenge Co., 280 S.W. 448, do not hold to the contrary. In all of these cases, the court had authority and power to issue writs of attachment and garnishment because they were all actions at law. (5) Since said court below had no jurisdiction to summons the Columbia Aircraft Corporation as garnishee on said Bill in Equity, said court had no jurisdiction to require said Columbia Aircraft Corporation to answer any interrogatories propounded to it as such garnishee. Cases cited under (2). (6) A creditor's bill against third party defendants, other than the judgment debtor, cannot result in a personal judgment against said third party defendants where said creditor's bill nowhere alleges that said third party defendants, or either of them, have dissipated assets which it is claimed were acquired from the judgment debtor without the payment of adequate consideration therefor. The only relief obtainable on creditor's bill is that sought by the plaintiff in its Bill in Equity, namely, to declare a trust against such property that can be shown the third party defendants acquired from the judgment debtor without paying therefor. Therefore, the very nature of the creditor's suit constitutes in effect an equitable garnishment, and therefore legal attachment and garnishment of property and debts not acquired by the third party defendants from the judgment debtor, cannot lie, and the court had no jurisdiction whatever to issue said writs of attachment and garnishment. Cases cited under paragraph (1); 14 Amer. Juris., sec. 140, p. 737; Dunphy v. Kleinsmith, 11 Wall. 610, 20 L.Ed. 223; Oppenheimer v. Collins, 115 Wis. 283, 91 N.W. 690, 60 L. R. A. 406; Boyd v. Northern Pac. R. Co., 170 F. 779. (7) Since the court below is assuming to exercise personal jurisdiction over said Auchincloss, Parker & Redpath, Inc. and required it to answer within three days after the entry of its judgment, on penalty of default, although said corporation was a nonresident of the State of Missouri and had never been served with summons; and since the court below has ordered the Columbia Aircraft Corporation, which has been personally served to answer interrogatories on a garnishment which said court had no jurisdiction to issue, on penalty of a default judgment against it, said court below is assuming to exercise jurisdiction that it clearly does not possess, and assuming to act in excess of its jurisdiction. Therefore, said defendants, relators herein, have no adequate remedy at law, and prohibition is the proper remedy. Sec. 1184, R. S. 1939; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857; State ex rel. McIndoe v. Blair, 238 Mo. 132; Mertens v. McMahon, 66 S.W.2d 127. (8) Plaintiff's Bill in Equity was originally filed on June 18, 1941, in the Circuit Court at Independence, Missouri. On the same day, said court, without notice to any defendant, issued a show cause order directing the defendants Auchincloss, Parker & Redpath, Inc. and Columbia Aircraft Corporation to show cause why an injunction should not issue to prevent said Auchincloss Company from foreclosing a certain chattel mortgage, and to prohibit said Columbia Company from removing any of its property from the State of Missouri. The Auchincloss Company filed a special plea to the jurisdiction of the court alleging that the Bill in Equity set out that said corporation was a nonresident of the State of Missouri, and said special plea further alleging that said Auchincloss Company had not been served with summons and that the court had no jurisdiction on said show cause order to issue an injunction against it, which said injunction could operate only in personam. This special plea to the jurisdiction was not and could not have been a general entry of appearance. Cases cited in previous paragraphs; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Gainsburg v. Dodge, 101 S.W.2d 178; 32 C. J., p. 83; 21 R. C. L. 1284; Howard v. Berryman, 288 P. 605; Armstrong v. Kinsell, 164 N.C. 125, 80 S.E. 235.

William G. Boatright, Ryland, Stinson, Mag & Thomson, Roy B. Thomson and Robert E. Rosenwald for respondent.

(1) The writ of attachment in the action pending before respondent properly issued; the circuit court acted well within its jurisdictional authority in issuing said attachment and in overruling the pleas and motions attacking the validity of the attachment. Adams v. Clark, 85 P. 642; American Land Co. v. Grady, 33 Ark. 550; Baldwin v. Buchanan, 10 Iowa 277; Barrie v. United Rys Co., 138 Mo.App. 557; Berthold v. Holladay-Koltz Land & Lbr. Co., 91 Mo.App. 233; Bingham v. Keylor, 53 P. 729; Buckley v. Maupin, 125 S.W.2d 820; Carolina Agency Co. v. Garlington, 67 S.E. 225; Corson v. Ball, 47 Barbour, 452; Gillespie v. Lovell, 7 Kan. 419; Graham v. Schooler, 194 P. 1080; Hendrickson v. Brown, 65 P. 935; Ingram v. Prairie Block Coal Co., 5 S.W.2d 413; Jackman v. St. Louis & Hannibal R. Co., 304 Mo. 319; Kinsella v. Marquette-Easton Finance Corp., 28 S.W.2d 427; Martin v. Holland, 87 Ind. 105; State ex rel. v. Smith, State Auditor, 121 S.W.2d 160; Thompson v. Abbott, 61 Mo. 176; Weintraub v. Superior Court, 267 P. 733; R. S. 1939, sec. 1438; Laws 1864-5, p. 10; Laws 1849, p. 73, sec. 1; R. S. 1855, p. 238, sec. 1. (2) The relators have no grounds to complain as respects the action taken by the respondent concerning the stock levy. (3) The relator Auchincloss, Parker & Redpath, Inc., by the filing in the proceeding before respondent of its "Plea to the Jurisdiction and Motion to Quash" and "Plea to Jurisdiction . . . to Order to Show Cause," entered its general appearance, thereby submitting itself to respondent's jurisdiction for all purposes. Case v. Smith, 215 Mo.App. 621, 257 S.W. 148; Evans v. King, 7 Mo. 411; Hill v. Barton, 194 Mo.App. 325; Johnson v. Holt's Administrator, 31 S.W.2d 895; Meador v. Manlove, 97 Kan. 706, 156 P. 731; Newcomb v. Railroad, 182 Mo. 687; Robuck v. Rasmussen, 251 S.W. 1115; Service Printing Co. v. Wallace, 64 P.2d 863; State ex rel. Bennett v. Industrial Comm., 50 Ohio App. 269, 198 N.E. 56; State ex rel. Pacific Mut. Ins. Co. v. Grimm, 239 Mo. 135; Swetland v. Swetland, 149 A. 50; ...