State v. Leahy

• Decision Date: 23 November 1915
• Docket Number: No. 15057.,15057.
• Citation: 193 Mo. App. 36,180 S.W. 458
• Parties: STATE ex rel. LEAHY et al. v. BARNETT, Circuit Judge.
• Court: Missouri Court of Appeals

180 S.W. 458

193 Mo. App. 36

STATE ex rel. LEAHY et al. v. BARNETT, Circuit Judge.

No. 15057.

St. Louis Court of Appeals, Missouri.

November 23, 1915.

Original prohibition proceeding by the State, on relation of John S. Leahy and others, against James D.. Barnett, Judge of the Audrain County Circuit Court. Preliminary rule vacated, and writ quashed.

Leahy, Saunders & Barth, of St. Louis, for relators. C. C. Madison, of Kansas City, and Fry & Rodgers, of Mexico, Mo., for respondent.

NORTONI, J.

This is a proceeding in prohibition instituted in this court. Respondent is the judge of the circuit court of Audrain county.

It appears that Samuel M. Locke and E. R. Locke, residents of Audrain county, Mo., instituted their suit by attachment against Alfred H. Woodman, James H. Sanderson, David William Adam, Henry W. Laird, Donald McLean, and John McLean, defendants, in the circuit court of Audrain county. All of the defendants in attachment above named are said to be residents of the Dominion of Canada, and the affidavit in attachment so recites the fact to be—that is, the attachment proceeds on the ground the defendants are nonresidents of the state. In the suit plaintiffs sued out two separate writs of attachment—one directed to the sheriff of Audrain county, and the second to the sheriff of the city of St. Louis, Mo. The attachment suit was instituted in Audrain county, because it appeared the defendants had property there subject to the jurisdiction of the court—that is to say, money on deposit in the Mexico Savings Bank—and under the writ of attachment addressed to the sheriff of Audrain county the Mexico Savings Bank was summoned as garnishee in the case. Under the separate writ of attachment issued to the sheriff of the city of St. Louis, the relators, John S. Leahy et al., were summoned as garnishees to answer the interrogatories preferred in the circuit court of Audrain county. Relators filed a motion in the circuit court, praying that they be discharged from answering the interrogatories in garnishment, because the court was without jurisdiction to require them to appear and answer in that county, and this was overruled. Thereafter the preliminary writ in prohibition was issued here, in the view that the circuit court of Audrain county was without jurisdiction to require the garnishees so residing in St. Louis to appear in the circuit court of Audrain county.

It is argued the circuit court of Audrain county is without power to require these garnishees, relators, to answer and proceed to condemn the debt owing by them to defendants in attachment—that is to say, that relators as garnishees may not be required to answer touching that matter in any court other than that of the city of St. Louis, wherein the garnishees reside. When the several relevant provisions of the statute are viewed, the argument is obviously without merit. Section 1752, R. S. 1909, authorizes a suit by attachment against the property of a defendant in the county where such property may be found. Under this statute it has been frequently declared that a suit by attachment may be instituted in any county where defendant has property or effects. See Huxley v. Harrold, 62 Mo. 516; Carter v. Arbuthnot, 62 Mo. 582; Sedalia National Bank v. Rudert, 153 Mo. App. 450, 134 S. W. 1056. It appears from the return of the garnishee Mexico Savings Bank that it had money on deposit with it belonging to one of the defendants, Alfred H. Woodman, in the amount of $45. Such is sufficient to sustain the jurisdiction of the circuit court of Audrain county in the first instance.

But it is argued, even though all of the defendants owned property in Audrain county at the time, it was not competent for the court to require relators, as garnishees residing in St. Louis, to come into that court and answer. Section 2314, R. S. 1909, provides that, when any defendant in attachment has property or effects in different counties, separate writs may issue to every such county. Section 2311, prescribing the form of a writ in attachment, directs substantially that it may be levied upon the lands, tenements, goods, chattels, rights, moneys, credits, evidences of debt, and effects of the defendant, and that the sheriff shall "summon as garnishees all persons in whose hands or possession any personal property, rights, credits, evidences of debt, effects or money of the defendant may be, or who may be named by the plaintiff or his attorneys as garnishees." Such is the only statute setting forth the form of the writ, and obviously it relates to a case such as this one, where the garnishee resides without the county in which the suit was instituted, as well as within it. In other words, if the writ authorizes the summoning of garnishees within the county, and the attachment of moneys and credits in their hands, it authorizes the same when under other provisions of the statutes it is competent to send the writ into different counties. This appears to be true, for that section 2314 authorizes the issuance of a separate writ to another county when defendant has "property or effects in different counties." Although this section does not mention in terms money, credits, etc., these are included within the words "property or effects." The word "property," it is said, is nomen generalissimum, and extends to every species of valuable right and interest, including real and personal property, easement, franchises, and other incorporeal hereditaments. See 6 Words and Phrases; Wilson v. Beckwith, 140 Mo. 359, 41 S. W. 985; Lawrence v. Hennessy, 165 Mo. 659, 679, 65 S. W. 717. Obviously the word "property," thus used in the statute, includes money and credits. See, also, Bouvier's Law Dictionary....