State ex rel. Rabiste v. Southern

• Decision Date: 14 August 1923
• Citation: 254 S.W. 166,300 Mo. 417
• Parties: THE STATE ex rel. CHARLES RABISTE v. ALLEN C. SOUTHERN, Judge of Circuit Court
• Court: Missouri Supreme Court

254 S.W. 166

300 Mo. 417

THE STATE ex rel. CHARLES RABISTE v. ALLEN C. SOUTHERN, Judge of Circuit Court

Supreme Court of Missouri

August 14, 1923

Preliminary rule discharged.

Clarence Wofford and Bert S. Kimbrell for relator.

(1) The respondent, in making and causing to be entered, on October 31, 1922, the order directing the New England Safe Deposit Vaults Company to deliver the contents of the safe-deposit box, rented to Charles Rabiste, to the Sheriff of Jackson County, within ten days from the date of said order, to be held and attached by said sheriff under the writ of attachment, acted wholly without jurisdiction. (a) There was no res shown to which the jurisdiction of the court might attach and upon which jurisdiction might rest. Riley Oil Co. v. Symmonds, 195 Mo.App. 118; Typewriter Co. v Cash Register Co., 156 Mo.App. 107; Mercantile Co v. Bettles, 58 Mo.App. 387; Barnhardt Bros. v Dollarhide, 186 S.W. 565; State ex rel. v. Blair, 238 Mo. 132. (b) The court did not have jurisdiction of the res or the contents of the safe-deposit box. Secs. 1742, 1747, 1749, 1851, R. S. 1919; Latimer v. Union Pacific Ry., 43 Mo. 109; 1 Shinn on Attachment & Garnishment, p. 446; Robertson v. Hoge, 83 Va. 126; Jones v. Bibb Brick Co., 120 Ga. 321; Rock v. Singmaster, 62 Iowa 511; Siling v. Hendrickson, 193 Mo. 386; Todd v. Mo. Pac. Ry. Co., 33 Mo.App. 112; Hackett v. Gihl, 63 Mo.App. 453; Grocer Co. v. Carlson, 67 Mo.App. 184; Kansas & Texas Coal Co. v. Adams, 99 Mo.App. 481; Marx v. Hart, 166 Mo. 503. (c) The court did not have jurisdiction of the person of Charles Rabiste, named as defendant in the suit filed in the Circuit Court. Secs. 1183, 1184, 1746, 1747, R. S. 1919; Davison v. Hough, 165 Mo. 573. (d) The court did not have jurisdiction of the person of the garnishee, the New England Safe Deposit Vaults Company. Secs. 1747, 1847, 1851, 1858, 1859, 1862, 1863, 1864, 1865, R. S. 1919; Davison v. Hough, 165 Mo. 573. (e) The recitals in the order of facts found, upon which the order was predicated, affirmatively show the lack of jurisdiction to make and cause to be entered the order. Sec. 1747, R. S. 1919; Fletcher v. Wear, 81 Mo. 529; Howell v. Sherwood, 213 Mo. l. c. 575; Norman v. Ins. Co., 237 Mo. 584; Givens v. Harlow, 251 Mo. 241. (2) The respondent in making and causing the order to be entered, acted wholly without jurisdiction, for the reason that the paper purporting to be an affidavit in attachment filed at the time of the filing of the suit, was void, and, being void, could not be amended. Sec. 1730, R. S. 1919; Bray v. McClury, 55 Mo. 128; Hargadine v. Van Horn, 72 Mo. 370. (3) The respondent, in making and causing to be entered said order, exceeded or acted in excess of the jurisdiction possessed, for these reasons: (a) Under the facts and circumstances disclosed, there was no statutory authority for such order. Secs. 1846 to 1875, R. S. 1919, relative to Garnishment. (b) Our statutes with reference to attachment and garnishment in attachment are in derogation of the common law, and a strict compliance with such statutes is mandatory and jurisdictional. Howell v. Sherwood, 213 Mo. 575; Norman v. Ins. Co., 237 Mo. 584. (c) The order as made is too broad and sweeping. West Cache Sugar Co. v. Hendrickson, 190 P. 946, 11 A. L. R. 216. (4) The respondent, in making and entering the order, having acted without jurisdiction or in excess of the jurisdiction possessed, should be prohibited from enforcing said order and from entertaining further jurisdiction with reference thereto and the preliminary rule in prohibition should be made permanent. State ex inf. v. Colbert, 273 Mo. 209; State ex rel. v. McQuillan, 260 Mo. 173; State ex rel. v. McQuillan, 246 Mo. 532; State ex rel. v. Barnett, 245 Mo. 114.

E. B. Silvers for defendant.

(1) The amended affidavit relates back and renders all proceedings in the attachment valid. Sec. 1772, R. S. 1919; Claflin v. Hoover, 20 Mo.App. 315; Kirksville Bank v. Spangler, 59 Mo.App. 172; Burnett v. McCluey, 92 Mo. 230; Avery v. Good, 114 Mo. 290. (2) The safety-deposit company is subject to garnishment. Trowbridge v. Spinney, 62 P. 125; National Safe Deposit Co. v. Stead, 232 U.S. 58, 58 L.Ed. 504; Tillinghast v. Johnson, 41 L. R. A. (N. S.) 764. (3) The garnishee was properly served. See record. (4) Personal service on defendant is not essential to jurisdiction over property in a garnishee's hands. See cases cited by relator. (5) The order made by the trial court is properly made at any time after service of the garnishee. R. S. 1919, sec. 1853; McGarry v. Lewis Coal Co., 93 Mo. 237; Bank of State v. Bredow, 31 Mo. 523; Calumet Paper Co. v. Haskell Printing Co., 144 Mo. 331.

DAVID E. BLAIR, J. Graves, James T. Blair and Walker, JJ., concur; Woodson, C. J., dissents; White and Ragland, JJ., absent.

OPINION

In Banc

Prohibition.

DAVID E. BLAIR, J.

-- This is an original proceeding in prohibition against respondent as judge of Division No. 5 of the Circuit Court of Jackson County. We issued our preliminary rule and therein referred to the petition for the facts. Respondent has filed his demurrer to such petition on the ground that it does not state facts sufficient to constitute a cause of action. Therefore, the facts well pleaded in the petition must be taken as true.

In the petition in this court Charles Rabiste, the relator, is designated as plaintiff, but we will hereafter refer to him as "defendant," as he was designated in the circuit court. New England Safe Deposit Vaults Company will be referred to as "garnishee." Judge Southern designated as defendant in the petition here, will be referred to as "respondent." Live Stock State Bank will be referred to as "plaintiff."

On October 23, 1922, there was begun, in the division of the Jackson County Circuit Court over which respondent was presiding as judge, a certain cause returnable at the November term, 1922, of said court, wherein Live Stock State Bank was plaintiff and Charles Rabiste and others were defendants, whereby plaintiff therein sought to recover judgment against defendants for $ 9500. On the same day an affidavit in attachment was filed in said cause, which was based upon the ground that "the damages for which said action is brought are for injuries from the commission of a felony." Attachment bond in the sum of $ 19,000 was filed by plaintiff and approved. On said day the Clerk of the Circuit Court issued a writ of attachment to the Sheriff of Jackson County. On October 30, 1922, plaintiff filed an amended affidavit for attachment.

The Sheriff of Jackson County made the following return to the writ of attachment:

"Executed the within writ in Jackson County, Missouri, on the 26th day of October, 1922, by levying upon, seizing and attaching as the property of the within named defendant Chas. Rabiste and Ernest Hodges the personal property described as follows, to-wit:

"Two keys to safe deposit box in Mercantile Trust Company's Vaults at 14th and Grand Avenue. Two keys and rental receipt made October 17, 1922, to Chas. Rabiste for safe deposit box in New England Safe Deposit Vaults Co. in New England building at 9th and Wyandotte, which keys and receipt I now hold.

"Further executed this writ in Jackson County, Missouri, on the 26th day of October, 1922, by making a demand on the New England Safe Deposit Vaults Co. for the contents of the safe deposit box rented from them by Chas. Rabiste on October 17, 1922, which demand was refused by the New England Safe Deposit Vaults Co."

The sheriff made an additional return to the writ of attachment, which is Exhibit F attached to the petition and is as follows:

"Executed the within writ in Jackson County, Missouri, on the 23rd day of October, 1922, by garnisheeing New England Safe Deposit Vaults Company, Produce Exchange Bank and Mercantile Trust Company, by declaring to them that I did attach in their hands all debts due by them to the within named defendant together with all personal property, money, rights, credits, bonds, bills, notes, drafts, checks, or other choses in action of the within named defendant or so much thereof as will be sufficient to satisfy the sum of nine thousand five hundred dollars, with interest and costs of suit; and I did summons them, the said New England Safe Deposit Vaults Company, Produce Exchange Bank and Mercantile Trust Company, to be and appear before the Circuit Court of Jackson County, at Kansas City, Missouri, on the 13th day of November, 1922, then and there to answer such interrogatories as may be exhibited by Live Stock State Bank, a corporation, the within named plaintiff, by delivering to W. H. Richart, manager, he being a managing officer of New England Safe Deposit Vaults Company, at 4:20 p. m. October 23, 1922, Joe G. Hall, Asst. Cashier, Produce Exchange Bank, at 4 p. m. October 23, 1922, Le Clair Lambert, vice-president and treasurer, Mercantile Trust Company, at 4:30 p. m. October 23, 1922, a notice of such garnishment and summons, a copy of which said notice by me so delivered is hereby attached and made a part of this return.

"And further executed this writ in Jackson County, Missouri, on the - - day of , 19--, by making diligent search for, but could not find any goods, chattels or real estate of the within named defendant upon which to levy the same and this writ is returned not further satisfied."

Defendant contends that Exhibit F is the return of the sheriff to the summons of garnishment issued by the clerk and is not a return to the writ of attachment. This will be considered later.

On October 27, 1922, plaintiff filed with the Clerk of the Circuit Court its application for an order upon garnishee to deliver the contents of the safe-deposit box to the sheriff, and delivered copies of such application...