Stephens College v. Long
| Decision Date | 06 March 1943 |
| Docket Number | 35610. |
| Citation | 134 P.2d 625,156 Kan. 449 |
| Parties | STEPHENS COLLEGE v. LONG et ux. |
| Court | Kansas Supreme Court |
Rehearing Denied April 17, 1943.
Syllabus by the Court.
The garnishee is a "necessary party" to appeal from order discharging garnishment. Gen.St.1935, 60-940 to 60-963 60-951, 60-954, 60-3311.
Where garnishment was directed against county treasurer for purpose of reaching money turned over to treasurer by executor of an estate, on refusal of defendant and judgment debtor in main action to accept legacy, county treasurer was "necessary party" to appeal from order discharging garnishment and, where he was not joined as a party to the appeal, appeal would be dismissed. Gen.St.1935, 60-940 to 60-963, 60-951 60-954, 60-3311.
Under statute providing that no judgment shall be rendered on liability of garnishee arising by reason of money in garnishee's hands as a public officer and for which garnishee is accountable to defendant merely as such officer garnishment of funds in hands of county treasurer which had been turned over to county treasurer by executor of an estate after refusal of defendant in main action to accept legacy was properly discharged. Gen. St.1935, 60-955.
1. On appeal from an order discharging a garnishee from liability, the garnishee is a necessary party.
2. Where necessary parties have not been joined on appeal, the appeal must be dismissed.
Appeal from District Court, Butler County, Division No. 1; Carl Ackarman, Judge.
Action by Stephens College, a corporation, against J. E. Long and wife, wherein the plaintiff obtained a money judgment against the defendant Mrs. J. E. Long. From an order discharging a garnishment of funds in the hands of a county treasurer, plaintiff appeals.
Appeal dismissed.
W. H. Coutts, Jr., of El Dorado, for appellant.
L. J. Bond, of El Dorado, on the brief, for appellees.
This is an appeal from an order discharging a garnishment of funds in the hands of a county treasurer.
In view of the conclusion presently to be stated, a very brief recital of the facts will suffice. On July 15, 1937, Stephens College, appellant here, obtained a money judgment against Mrs. J. E. Long. Administration was then being had of the estate of her mother, Mrs. Hall. Partial distribution had been made, Mrs. Long being one of the legatees. Against Mrs. Long's share had been set off certain notes, signed by her, and listed as assets of the estate. Apparently there was some controversy over this matter, and when final distribution was made on November 30, 1937, Mrs. Long refused to receive the cash distribution made to her and upon order of the probate court it was turned over to the county treasurer. No part of the record in the probate court has been brought here but we are advised by counsel that no appeal was taken from any orders made in the probate court. Final settlement was made and the executor discharged on January 6, 1938. About four years thereafter, Stephens College, as judgment creditor of Mrs. Long, brought garnishment in the district court, directed against the county treasurer for the purpose of reaching the money turned over to him from the Hall estate, on the theory that it belonged, in fact, to Mrs. Long. Presumably the county treasurer filed an answer. Upon motion of Corwin Hall, formerly executor of the Hall estate, and after hearing, the garnishment was discharged on January 7, 1942, and from that order, as well as from an order denying a rehearing on the motion, this appeal was taken. In passing we note that the record does not disclose and we are not advised as to the theory upon which Corwin Hall, who had ceased to be executor of the estate several years prior thereto, became a party to the garnishment proceeding.
Appellant seeks to raise the questions of whether Mrs. Long in fact renounced her legacy, whether under the circumstances shown she could renounce or disclaim it as against the interest of her judgment creditor. Important as are these and other questions raised by appellant, it becomes clear upon examination of the record that we cannot here consider them.
In the first place, appellees challenge appellant's right to be heard because of failure to file a complete transcript with the clerk of the district court. G.S.1935, 60-3311; Mercer v. Kirkwood, 147 Kan. 637, 77 P.2d 929 and cases there cited. It is conceded that the complete transcript was filed late--after appellees' brief was prepared. Appellant relates facts in extenuation of the delay in filing which need not be recited here but which are quite persuasive,...
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