Sutton v. Heinzle

• Decision Date: 06 May 1911
• Docket Number: 17,057
• Parties: WILLIAM B. SUTTON, Appellee, v. MARTIN HEINZLE, Individually and as Next Friend, etc., et al., Appellees, and RICHARD J. SMITH, Appellant
• Court: Kansas Supreme Court

115 P. 560

84 Kan. 756

WILLIAM B. SUTTON, Appellee, v. MARTIN HEINZLE, Individually and as Next Friend, etc., et al., Appellees, and RICHARD J. SMITH, Appellant

No. 17,057

Supreme Court of Kansas

May 6, 1911

Decided January, 1911.

Appeal from Wyandotte court of common pleas.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GARNISHMENT--Foreign Corporation--Debt Contracted Outside of State--Jurisdiction--Publication Service. A foreign corporation doing business in this state, and subject to process here, may be garnished for a debt owing to a nonresident defendant, which was incurred outside the state and jurisdiction over the fund, as against the defendant, and as against a nonresident claimant of it disclosed by the garnishee's answer, may be obtained by publication service upon them.

2. GARNISHMENT--Foreign Judgment. Where a judgment rendered in another state is satisfied without the indebtedness having been fully paid, under an agreement that the defendant is to pay the balance, the remaining obligation is a contract debt and is subject to garnishment in this state.

3. MINORS -- Necessaries -- Attorney's Fee. Beneficial services rendered to a minor by an attorney under an express or implied contract are classed as necessaries, and payment therefor can not be avoided on the ground of the client's minority.

Richard J. Smith, A. E. Dempsey, and E. E. Naber, for the appellant.

William B. Sutton, and William B. Sutton, jr., for William B. Sutton, appellee.

OPINION

MASON, J.:

William B. Sutton brought action in Wyandotte county, Kansas, against Martin Heinzle, a resident of Kansas City, Mo., for an attorney's fee, serving garnishment summons upon the Metropolitan Street Railway Company, a Missouri corporation engaged in business in this state and amenable to process here. The garnishee answered stating in effect that Heinzle had obtained a judgment against it in Missouri for $ 10,000, on account of a claim for personal injury; that all but $ 1200 of the judgment had been paid; and that Richard J. Smith and others claimed an interest in or lien upon this balance. The plaintiff elected to take issue with the answer of the garnishee, and caused Smith and the other claimants to be made parties. Smith appeared specially and contested the jurisdiction of the court, and later the plaintiff's claim on the merits. The other defendants defaulted. The court upon oral evidence, which is not preserved in the record, found that the defendant owed the plaintiff, that the garnishee owed the defendant, and that the interpleaded defendants, including Smith, had no interest in the fund. Judgment was rendered ordering the garnishee to pay the plaintiff's demand. Smith appeals. He did not appear at the trial. He contends that this was due to a misunderstanding on his part and that he should on that account have been granted a new trial. This matter, however, seems to be one in which the decision of the trial court must be final. In view of this situation the only questions on which the appellant can be heard are those arising on the pleadings, the principal one of which is whether, in view of the residence of the parties and character of the debt garnished, the court acquired jurisdiction of the fund. In a note in 69 Am. St. Rep. 112 it is said:

"We believe it to be a rule of law, sound in principle, and amply supported by the appended authorities, that corporations are properly subject to garnishment only in the states either of their domiciles or of the residence of their creditors, and that a corporation, by going into another state, qualifying under its laws, transacting business there, and establishing an agent upon whom process may be served in suits against the corporation, does not thereby transfer to such other state the situs of debts which it owes to nonresidents thereof, nor subject such debts to seizure in such state under process of garnishment." (p. 122.)

The contrary is held in the well-considered case of Baltimore & Ohio Railroad Co. v. Allen, 58 W.Va. 388, 52 S.E. 465, which fully reviews the authorities, and which is annotated in 3 L.R.A. N.S. 608, and 112 Am. St. Rep. 975, 995. The question can not be regarded as an open one in this state, having been decided in B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, a paragraph of the syllabus reading:

"A foreign corporation coming into this state, and leasing property and doing business here, may be garnished for a debt due to one of its employees, although such employee is not a resident of this state, and although the debt was contracted outside of the state." (Syl. P 3.)

In the opinion it was said:

"A...