The Missouri Pacific Railway Company v. Sharitt

• Citation: 23 P. 430,43 Kan. 375
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. J. W. SHARITT
• Decision Date: 01 January 1890
• Court: United States State Supreme Court of Kansas

23 P. 430

43 Kan. 375

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

Supreme Court of Kansas

January 1, 1890

Error from Franklin District Court.

J. W SHARITT brought this action on the 27th day of July, 1887 against the Missouri Pacific Railway Company, to recover wages due him. The action was brought before a justice of the peace in Franklin county, and judgment was rendered against the defendant. An appeal was taken to the district court which made findings of fact and conclusions of law as follows:

"1. Plaintiff was in the employ of the defendant at Council Grove, Kansas, during the month of June, 1887, performing manual labor in and about coupling cars and making up trains and the like, and was styled a 'yard master.'

"2. As such laborer he earned and became and was entitled to receive from the defendant for such month's services the sum of $ 79 -- of which sum $ 75 has not been paid.

"3. Plaintiff is a citizen, resident and householder of the state, and has been for more than two years last past. During said month of June, 1887, and ever since, the defendant had a family, to wit, a wife and three children, supported by his labor, and his said earnings were necessary for the support of said family.

"4. While the action was pending before the justice, it appeared that certain garnishee proceedings were pending in Morris county, Kansas, whereby it was sought to subject said wages to the claim of a certain party there, and it was then agreed between the attorneys for the respective parties in this case that the suit here should be continued ten days, and that if in the meantime said garnishee proceedings were dismissed, the defendant would pay plaintiff's claim or submit to judgment thereon if plaintiff would pay costs; accordingly, at the expiration of said ten days said proceedings having been dismissed, the justice entered judgment accordingly. On the 13th day of July, 1887, at St. Louis, Mo., the defendant company was garnished by and before a justice of the peace of that state, at the suit of W. P. Stewart, a resident of Missouri, against said J. W. Sharitt, and ordered to answer therein, in which it did on July 28, 1887; and the company was on September 29, 1887, ordered to pay into that court the amount so due the plaintiff. The plaintiff Sharitt, defendant in that suit, was not served in said action otherwise than by publication. From the order so requiring said company to pay said moneys, the said company appealed to the circuit court of St. Louis county, Missouri, which said action is now pending and undetermined. Neither party nor their attorneys had notice or knowledge of these proceedings in St. Louis when the agreement referred to in the fourth finding was made.

"I conclude as matter of law that said personal earnings were and are exempt from the payment of plaintiff's debts, and that he is entitled to recover the same in this action, and judgment will be rendered accordingly."

Judgment thereon was rendered for the plaintiff at the October term, 1887. Defendant brings the case here.

Judgment affirmed.

John W. Deford, and Waggener, Martin & Orr, for plaintiff in error.

Enoch Harpole, for defendant in error.

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

OPINION

CLOGSTON, C.:

It is not contended that the claim sued on is not exempt under the exemption laws of this state, but it is contended that because the garnishment proceedings were commenced in Missouri, and the court of that state obtained jurisdiction of the subject-matter before this suit was brought in Kansas, for that reason the defendant company became liable under its answer in Missouri under said proceedings, and should not again be held liable in this state in this action. The plaintiff in error recognizes the rule laid down by this court, that if the garnishment proceedings had been commenced in this state, no question could have been raised; and also recognizes the rule adopted in this state that the garnishee has the same right in his answer to raise all the questions that the debtor himself might raise, and plead the exemption law as completely as the debtor might plead it. But plaintiff in error says no such rule exists in Missouri; that under the decisions of that state it is precluded from asserting this right, and therefore if' it is compelled to pay this judgment, it will again have to pay the claim under its answer in Missouri. This seems to present a hardship; but as the claim is exempt under the laws of this state, and presumably exempt under the laws of Missouri -- for it is presumed, in the absence of any showing to the contrary, that the laws of Missouri are the same as the statutes of this state -- therefore, if this claim is exempt under both the laws of Missouri and of Kansas, it would be unjust to the defendant in error if by reason of some construction of the statute of Missouri he should be prevented from securing the benefit of the exemption. It has been held in this state that the garnishee may plead the exemption laws and be protected thereby as completely as the debtor would be. (Mull v. Jones, 33 Kan. 112.) This seems to be the well-recognized doctrine elsewhere; and, while there is some conflict in the authorities on this subject, the great weight of authority is with our court.

We see no reason why an exception should be made in this case, to a rule so well established. Under the rule laid down in Mo. Pac. Rly. Co. v. Maltby, 34 Kan. 125, and K. C. & J. C. Rld. Co. v. Gough, 35 id. 1, this judgment must be affirmed. (See also, Drake v. L. S. & M. S. Rly. Co., 69 Mich. 168; 37 N.W. 70.) Under those decisions, this claim would be exempt to the plaintiff below had he resided either in the state of Missouri, or, as he does, in Kansas, and such exemption ought to be a good defense for the defendant company in Missouri.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

:HORTON, C. J., and JOHNSTON, J., concurring.

CONCUR BY: VALENTINE

CONCUR

VALENTINE J.:

I concur in the decision of this case, for the reason that I believe it is sustained by reason and the weight of authority. It seems to be generally held that the laws of any country where a debt is created enter into the contract upon which the debt is founded, so far as they are applicable and material, and form a part thereof. (Greer v. McCarter, 5 Kan. 18, 22; Deering v. Boyle, 8 id. 532, et seq., and cases there cited.) Also, in the absence of anything to the contrary, it will be presumed by the courts that the laws of all the other states are similar to their own. (Furrow v. Chapin, 13 Kan. 107; Dodge v. Coffin, 15 id. 285, et seq., and cases there cited; K. P. Rly. Co. v. Cutter, 16 id. 568; Baughman v. Baughman, 29 id. 284.) And when the situs of a debt is changed from the state or jurisdiction in which the debt was created, to some other state or jurisdiction, all its incidents and conditions materially affecting it will be transferred with it, and its interpretation, scope and validity will be governed by the lex loci contractus. For instance, if the debt is exempt from judicial process in the state where it is created, the exemption will follow the debt as an incident thereto into any other state or jurisdiction into which the debt may be supposed to be carried. (Drake v. L. S. & M. S. Rly. Co., 69 Mich. 168; same case, 37 N.W. 70; Wright v. C. B. & Q. Rld. Co., 19 Neb. 175; same case, 27 N.W. 90; Baylies v. Houghton, 15 Vt. 626; Pierce v. C. & N. W. Rly. Co., 36 Wis. 283. And see, especially, the opinion in the case of Mo. Pac. Rly. Co. v. Maltby, 34 Kan. 125, 128, et seq.) In the language of the Michigan case above cited, the exemption of the debt from judicial process "becomes a vested right in rem, which follows the debt into any jurisdiction where the debt may be considered as going." Also the situs of a debt is either with the owner thereof, or at his domicile, or where the debt is to be paid; and it cannot be subjected to a proceeding in garnishment anywhere else. See the numerous authorities hereafter cited, commencing with the case of the L. & N. Rld. Co. v. Dooley, 78 Ala. 524. I shall now proceed to consider this case with reference to its facts.

The Missouri Pacific Railway Company, a Missouri corporation doing business in Missouri and Kansas and other states, and operating over 2,000 miles of railway in Kansas, owes a debt not evidenced by any instrument in writing, to J. W. Sharitt, a resident of Kansas, for wages earned by him as yard master for the railway company at Council Grove, Kansas, and presumably payable at that place; which wages are, under the laws of Kansas, and presumably under the laws of Missouri, as nothing appears to the contrary, exempt from execution, attachment, garnishment and other process. W. P. Stewart, a resident of Missouri, who puts forth the claim that Sharitt owes him, instituted a garnishment proceeding before a justice of the peace of that state against the railway company to procure the payment to him of the debt which the railway company owes to Sharitt. Such proceeding is now pending in the circuit court of St. Louis, Missouri. No service of summons was ever made upon Sharitt in that case except by publication. The question now arises, and it is the principal question involved in this case, whether Sharitt is bound by such garnishment proceedings, or not. Now unless the Missouri court has jurisdiction of Sharitt, or of something belonging to him, of course the proceeding is void as to him. And as no personal service of summons was ever made upon him, it will be admitted that the proceeding is without jurisdiction and void as to him personally. But the further question remains:...