State ex rel. Specialty Foam Products, Inc. v. Keet

• Decision Date: 05 February 1979
• Docket Number: No. 10629,10629
• Citation: 579 S.W.2d 650
• Parties: STATE of Missouri ex rel. SPECIALTY FOAM PRODUCTS, INC., Relator, v. Honorable James H. KEET, Jr., Respondent.
• Court: Missouri Court of Appeals

Page 650

579 S.W.2d 650

STATE of Missouri ex rel. SPECIALTY FOAM PRODUCTS, INC., Relator, v. Honorable James H. KEET, Jr., Respondent.

No. 10629.

Missouri Court of Appeals, Southern District.

Feb. 5, 1979.

Motion to Vacate Opinion and Quash the Writ or for Rehearing

or Transfer Denied March 28, 1979.

Application to Transfer Denied May 17, 1979.

William A. Wear, Jr., Wear & Wear, Springfield, for relator.

Arch M. Skelton, Springfield, for respondent.

HOGAN, Judge.

This is an original action in prohibition, commenced by the relator as defendant in an action pending in the Circuit Court of Greene County. The relator's ground for seeking prohibition was that the procedure followed in commencing the action by attachment, or more accurately garnishment in aid of attachment, did not comport with the requirements of procedural due process as first articulated by the Supreme Court of the United States in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and subsequently developed in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). ¹ The petitioner supplied docket entries, which we were willing to construe as orders sufficient to justify a journal entry, Sears v. Norman, 543 S.W.2d 300, 304(7) (Mo.App.1976), and our preliminary rule issued because it appeared that the writ effecting the prejudgment seizure had issued without prior Or contemporaneous notice to the relator, and without the participation of any judicial officer.

The cause vividly illustrates the pitfalls and deficiencies of writ practice. The petition, twice "supplemented," is drawn in most conclusory language; the return, though adequate, undertakes to go into the merits of the cause. This is true here, and in most of the applications we receive for writs of prohibition even though it has been settled for years that in prohibition, the petition must unequivocally and explicitly set forth every fact requisite to the issuance of the writ, State ex rel. Brncic v. Huck, 296 Mo. 374, 381, 246 S.W. 303, 305(1) (banc 1922), conclusory allegations must be disregarded, State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 183, 189 S.W.2d 425, 428(2) (1945), and the return may not broaden the issues set up in the petition nor bring additional issues into the case. State ex rel. Brncic v. Huck, Supra, 296 Mo. at 381, 246 S.W. at 305. Moreover, our factual inquiry is limited in prohibition. The voluminous and expansive "suggestions" usually received in connection with writs are but a species of brief, and record facts cannot be supplied in a brief. In re Jackson's Will, 294 S.W.2d 953(1) (Mo.App.1956). Of course, the parties may consent to submit the cause as on an agreed statement of facts; if so, we are required to confine our consideration to undisputed facts and admissions against interest in the pleadings and disregard conflicting allegations. Issues of fact may be made up and heard before a master or commissioner appointed by the court, but save in habeas corpus or in cases of direct contempt, this court does not try causes on oral evidence as if it were a nisi prius court. State ex rel. Burtrum v. Smith, 357 Mo. 134, 144, 206 S.W.2d 558, 564(10) (banc 1947). Desirable as it may seem to some attorneys to try a case piecemeal in the court of appeals, such is not the function of the writ of prohibition.

It is not our purpose to lecture able counsel; it is our purpose to point out, once again, the inadequacy of the writ as compared to a petitioner's usual remedy by appeal. Here, the relator's remedy by appeal under former Rule 85.40 was manifestly inadequate if its funds had been unlawfully garnished on attachment, even though, in our opinion, its objection to the attachment was not subject to waiver by pleading over and going to trial, as it did. Greenwood v. Schnake, 396 S.W.2d 723, 725-726 (Mo.1965). For this reason, and because, as indicated, the petition strongly suggested a prejudgment seizure of relator's funds which did not satisfy the requirements of procedural due process, our preliminary writ issued. However, the petition was answered by traverse and in avoidance and the reply was in effect a general denial. Therefore, under the law as laid down in State ex rel. Burtrum v. Smith, supra, 357 Mo. at 144, 206 S.W.2d at 564, few, if any, uncontroverted Facts remain in the record for submission; certainly the uncontroverted factual allegations are insufficient to permit consideration of any issue of constitutional dimension, and if the parties intended to submit only issues of law, as was the case in State ex rel. Dunphy v. Eversole, 339 S.W.2d 506, 507(1) (Mo.App.1960), they have not succeeded. The reply traverses every allegation of the return, in effect denying the veracity of the record entries supplied by and pleaded in the return. We can look only to the sheriff's return to the writ of attachment to determine whether there is an absence of jurisdiction or an act wholly in excess of the trial court's jurisdiction. See State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 115, 149 S.W. 311, 315(4) (banc 1912).

The writ of attachment issued in the form prescribed by our Supreme Court. The return to the writ reads literally as follows:

"I hereby certify that I have executed the within writ in the County of Greene, State of Missouri, on the 22d day of November, 1976, by delivering a true copy as furnished by the Court to Asst. Vice President James R. Chalfant at the Commerce Bank and by taking possession of a Cashiers Check # 698893 payable to the 'Clerk of Circuit Court, Greene County' in the amount of $4,500 (Four Thousand Five Hundred Dollars and No cents.) The Cashiers Check in the above amount forewarded (sic) to the Circuit Clerk together with this return."

Rule 90.01 provides that garnishment may be had in aid of execution Or attachment; indeed, the printed form presently in use for commencement of an action by attachment contains an express command ". . . to summon as garnishees all persons in whose hands or possession any personal property, rights, credits, evidences of debt, effects or money of said defendant may be . . .". And, of course, Rule 90.06 provides that any garnishee may discharge himself by paying or delivering the amount claimed and held by him to the sheriff. Hilke v. Bank of Washington, 251 S.W.2d 963, 965 (Mo.App.1952). Here, obviously, the garnishee bank sought to discharge itself by paying over the amount sued for, and it was entitled to do so.

What we are concerned with in this case is the sufficiency of service to confer jurisdiction on the trial court. As this court observed in Fulkerson v. Laird, 421 S.W.2d 523, 526 (Mo.App.1967), garnishment is a purely statutory proceeding in derogation of the common law and strict compliance with all requirements imposed by our Civil Rules is essential to confer and support jurisdiction over the Res, which can be conferred neither by waiver nor consent. Fulkerson v. Laird, Supra, 421 S.W.2d at 526; Blackburn Motor Co. v. Benjamin Motor Co., 340 S.W.2d 155, 159-160(3) (Mo.App.1960); Federal Truck Co. of St. Louis v. Mayer, 216 Mo.App. 443, 450, 270 S.W. 407, 409(1) (1925). Moreover, no act of the garnishee can operate to deprive the defendant of his right to insist upon strict compliance with the rules; if the garnishee is not properly served, nothing is attached in his hands. Gates v. Tusten, 89 Mo. 13, 21-22, 14 S.W. 827, 829 (1886); Blackburn Motor Co. v. Benjamin Motor Co., supra, 340 S.W.2d at 159-160(3); Trinidad Asphalt Mfg. Co. v. Standard Oil Co., 214 Mo.App. 115, 123, 258 S.W. 64, 66-67(5) (1924).

The return shows on its face that it was served on a banking corporation. The governing civil rule, Rule 90.04, requires that: (our emphasis)

"(N)otice of garnishment . . . be served on a corporation, in writing, by delivering such notice, . . . to the President, secretary, treasurer, cashier, or Other chief or managing officer of such corporation . . .".

Can it be said that service upon an Assistant vice-president of a bank may be taken as service within the meaning of Rule 90.04? We think not. In Smith v. Bennett, 472 S.W.2d 623, 627(1) (Mo.App.1971), this court held the quoted part of Rule 90.04 contemplated a duly constituted executive officer whose authority and powers are such that he is regularly in control of the operations and business of the corporation. Assuming arguendo that there are orders of vice-presidents who might fall in that category, as much cannot be said of Assistant vice-presidents. As a title-modifying adjective, it has consistently been held that the word "assistant" carries the idea of subordination to another; implies duties that ordinarily are circumscribed and are performed in connection with and under the direction of the superior official. See: State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.2d 785, 788(3) (1941); 7 C.J.S. Assistant p. 15 (1937). A case colorably in point is Florida First Nat. Bank v. Dent, 350 So.2d 481, 483(2, 3) (Fla.App.1977). In that case, the Florida court had to consider whether a lease executed by the plaintiff bank was valid under a statute requiring the signature of the bank's " 'president or any vice-president or chief executive officer.' " A majority of the court held that an assistant vice-president was not a vice-president whose authority to execute a lease could be presumed. Rule 90.04 does not enumerate vice-presidents as officers upon whom service of garnishment may be had; we conclude that service upon Mr. Chalfant, as an assistant vice-president, cannot be taken as service upon a duly constituted executive officer whose authority and powers are such that he is regularly in control of the operations and business of the bank. In this respect, the return is...