The Farmers and Merchants Bank v. Dondelinger

• Decision Date: 06 July 1918
• Docket Number: 21,665
• Citation: 175 P. 109,103 Kan. 444
• Parties: THE FARMERS AND MERCHANTS BANK, Appellee, v. SARAH E. DONDELINGER, Appellant
• Court: Kansas Supreme Court

175 P. 109

103 Kan. 444

THE FARMERS AND MERCHANTS BANK, Appellee, v. SARAH E. DONDELINGER, Appellant

No. 21,665

Supreme Court of Kansas

July 6, 1918

Decided July, 1918.

Appeal from Reno district court; FRANK F. PRIGG, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GARNISHMENT--Nonnegotiable Notes Not Yet Due--Subject to Garnishment. A person indebted to the defendant in a civil action for the recovery of money, on nonnegotiable promissory notes not yet due, and payable on the happening of certain contingencies, is subject to garnishment.

2. SEPARATION AGREEMENT--No Trust Created Thereby--Consideration Not Alimony. A separation agreement, whereby for a consideration a wife releases her claim on her husband's property and to his support, does not create a trust, and the consideration is not alimony.

Carr W Taylor, of Hutchinson, for the appellant.

S. S. Alexander, of Kingman, and E. T. Foote, of Hutchinson, for the appellee; W. G. Gideon, of Springfield, Mo., of counsel.

OPINION

BURCH, J.:

The district court made an order directing a garnishee to pay money into court for the benefit of the plaintiff, and the defendant appeals.

The defendant was the defendant in the case of Dondelinger v. Dondelinger, 101 Kan. 179, 165 P. 849. In that case the court refused to cancel, at the behest of the defendant, a separation contract settling the property rights of the parties, whereby the defendant's husband was to pay her certain sums of money, evidenced by nonnegotiable promissory notes payable under certain conditions. The plaintiff in this action sued the defendant on a judgment previously obtained against her in a foreign state, and garnished her husband. The garnishee answered that he had given the notes described, that the litigation over the contract had not terminated, and that he did not know whether or not he was indebted to his wife on the notes. After the termination of that litigation, after judgment in favor of the present plaintiff, and after the liability of the garnishee on the notes had become absolute, the order appealed from was entered. The order included a direction to the garnishee to hold, subject to the order of the court, money to become due on the contract.

The defendant says it is hornbook law that a debt must be due when the garnishment summons is served, or it cannot be garnished, and that a contingent indebtedness is not subject to garnishment....