The Missouri Pacific Railway Company v. Sharitt

• Decision Date: 01 January 1890
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. J. W. SHARITT
• Court: Kansas Supreme Court

23 P. 430

43 Kan. 375

THE MISSOURI PACIFIC RAILWAY COMPANY v. J. W. SHARITT

Supreme Court of Kansas

January 1, 1890

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Motion for Rehearing.

THE plaintiff in error filed a motion for a rehearing, which the court denied at its session in March, 1890, and made the order infra.

Waggener, Martin & Orr, for the motion.

Enoch Harpole, contra.

VALENTINE, and JOHNSTON, J.J., concurring. HORTON, C. J., dissenting

OPINION

PER CURIAM.

Now comes on for decision the motion for a rehearing of this cause; and thereupon it is ordered that the said motion be overruled.

VALENTINE, and JOHNSTON, J.J., concurring.

DISSENT BY: HORTON

DISSENT

HORTON, C. J., dissenting: When the judgment of affirmance was rendered in this court, I had grave doubts whether the law had been properly declared. Since then I have reexamined the facts disclosed by the record, the decisions referred to by the attorneys, and the authorities in the opinions heretofore filed. My opinion now is that a rehearing should be granted, and that the judgment of the trial court should be reversed. My reasons are as follows:

It appears that Sharitt, the employe, during the month of June, 1887, performed manual labor for the Missouri Pacific Railway Company, which system extends through Missouri and Kansas. For these services the railway company owed its employe wages -- a debt; these wages are exempt from attachment or garnishment under the laws of this state. W. P. Stewart, a creditor of Sharitt, who resided in St. Louis, Mo., brought an action against him by attachment in St. Louis, on the 13th day of July, 1887, and garnished the railway company, which answered on July 28, 1887, to the facts of its indebtedness to the employe, and upon its answer, judgment was rendered against the company. The employe was served by publication. From the order of judgment requiring the company to pay the wages or debt to the creditor, the company appealed to the circuit court of St. Louis, Mo., where the action is now pending. Subsequent to the commencement of the action by attachment in St. Louis, Mo., and on the 27th day of July, 1887, Sharitt commenced his action before a justice of the peace, in Franklin county, of this state, to recover the same wages or debt, which had been garnished in St. Louis, Mo. The justice of the peace rendered judgment against the railway company; the company took an appeal to the district court of Franklin county, and that court also rendered judgment in favor of the employe, and against the railway company. This is complained of.

The question in the case therefore is, can the employe of the railway company bring his action in this state, and recover his wages, notwithstanding the defendant company has been garnished for the same wages by the employe's creditor in Missouri? Although the amount in dispute is small, the principles involved are important. Several great lines of railroad, like the Atchison, the Missouri Pacific, the Rock Island and others, extend through this into other states. These railroads have thousands of employes in their service, whose wages are liable to be garnished, and the law ought not to compel them to pay for the services of an employe twice, once to the creditor, and afterward to the employe.

Again, many of the employes of these railroads go from state to state in search of work, and often change their employer as well as their residence. These wage-workers ought to be protected in the payment of their personal earnings to themselves, which generally are exempt under the statutes of most of the states, so far as the law will permit. "The laborer is worthy of his hire." If the railway company is compelled to satisfy the judgment rendered against it in Missouri, then the employe ought not to recover, and the action commenced in this state should be delayed until the final disposition of the attachment or garnishee proceedings in Missouri. (Ferguson v. Bank, 25 Kan. 333.)

"Of course, no debtor should be required to pay his debt twice, but at the same time if he goes into a state outside of the state of his residence and transacts business therein, he must expect as to all matters of procedure and remedy, to abide by the laws of that state. . . . It cannot be doubted that the court of the state where he resides will respect a judgment rendered against him in this state, provided he has made a perfect and full disclosure and a reasonable defense against the claim presented." (Railroad Co. v. Thompson, 31 Kan. 180.)

Kent says:

"A lis pendens, before the tribunals of another jurisdiction, has, in cases of proceedings in rem, been held to be a good plea in abatement of a suit. Thus, where a creditor of A, a bankrupt, had, bona fide and by regular process, attached in another state a debt due to A, and in the hands of B, it has been held that the assignees of the bankrupt could not, by a subsequent suit, recover the debt of B. The pendency of the foreign attachment is a good plea in abatement of the suit. In such a case, the equity of the maxim, Qui prior est tempore, potior est jure, forcibly applies. Unless the plea in abatement was allowed in such a case, the defendant would be left without protection, and would be obliged to pay the debt twice." (Vol. 2, Comm., pages 122-123, and 125.)

See Morgan v. Neville, 74 Pa. 52; Thompson on Exemption, §§ 21-23; Connor v. Insurance Co., 28 F. 549; Freeman on Executions, 2d ed., § 209; Thompson on Exemption, § 23.

Pierce v. Railway Co., 36 Wis. 283, is in conflict with some of the foregoing decisions, but that case has been severely criticized. (2 Cent. L. J. 378.) But upon examination, that case does not, I think, militate against the conclusion I have reached. It is said in that case:

"The garnishee must bring the fact of the exemption to the notice of the court where the attachment is pending, or notify the employe of the pendency of the proceedings."

In the state of Missouri the supreme court holds that --

"The exemption of property from judicial process is a personal privilege of its owner, and that the debtor of such owner cannot assert it for him by way of defense to a garnishment proceeding." (Osborne v. Schutt, 67 Mo. 712.)

Therefore, the railway company could not, under the decisions of Missouri, have protected itself or its employe by alleging the exemption of the wages attached. As the attachment proceedings are still pending in Missouri, and the employe has notice now of these proceedings, even within the Wisconsin rule the garnishee has done all that it could do. If the law is decided otherwise, it is manifest that the railroad company will be subjected to a double liability, which does not comport with justice.

It is argued in the concurring opinion that, as Sharitt is not a resident of Missouri, and has not been personally served with any summons in the garnishment proceeding, the action in Missouri by Stewart, a resident of Missouri and the creditor of Sharitt, against the Missouri Pacific Railway Company, (a Missouri corporation,) is void as being without jurisdiction, and therefore that the garnishment proceeding is no defense to the action of Sharitt in this state. This view of the law is not, I think, sustained by the weight of the authorities. Drake, in his work on Attachment, § 597, says:

"Where the garnishee is indebted, it will not vary his liability that his contract with the defendant is to pay the money in another state or country than that in which the attachment is pending. Thus, where it was urged as a ground for discharging a garnishee, that his debt to the defendant was contracted in England, and was payable there only, so that the defendant could not, and therefore the plaintiff could not, make it payable elsewhere, the court said: 'We do not perceive any legal principle upon which the objection rests. This was a debt from the garnishee everywhere, in whatever country his person or property might be found. A suit might have been maintained by the defendant here, and therefore the debt may be attached here.'"

In Blake v. Williams, 6 Pick. 285, it was held, that --

"Where W., a banker in England, having advanced money to pay a bill of exchange drawn upon him by M., a citizen of this state, became a bankrupt, and after an assignment of his effects by commissioners of bankruptcy, but before notice of it had reached this country, the debt due from M. (he not having remitted funds to replace the money advanced) was attached in his hands by virtue of our trustee process by B., a citizen of this state and a creditor of the bankrupt, the attachment was held valid as against the assignment."

In the opinion in that case, it is said:

"By our law, the service of a trustee process upon one who is indebted to the defendant in the suit creates a lien upon the debt in favor of the plaintiff in the action; so that if he recovers judgment against the principal, he shall have execution against the trustee to the amount of the effects in his hands, or the debt which he owes; and no distinction is made in the application of this law between citizens who may be trustees of other citizens, and those citizens who may be indebted to a person residing in a foreign country who is indebted to citizens of the United States."

In Railroad Co. v. May, 25 Ohio St. 347, it was decided that --

"In an action to recover money due on contract, it is a sufficient defense to show that the money sought to be recovered has been attached by process of garnishment duly issued by a court of a sister state, in an action there prosecuted against the plaintiff by his creditors, although it appear that the plaintiff and such creditor are all residents of this...