Tuthill v. Moulton
| Decision Date | 04 November 1899 |
| Docket Number | 372 |
| Citation | 58 P. 1031,9 Kan.App. 434 |
| Parties | GEORGE TUTHILL v. HATTIE M. MOULTON et al |
| Court | Kansas Court of Appeals |
Decided November, 1899.
Error from Mitchell district court; R. M. PICKLER, judge.
Petition dismissed.
PRACTICE COURTS OF APPEALS -- Necessary Parties -- Garnishees. Garnishees, under the provisions of chapter 151, Laws of 1889 (Gen. Stat. 1897, ch. 95, §§ 227-246; Gen. Stat. 1899, §§ 4450-4473), are necessary parties to proceedings in error the object of which is to reverse a judgment discharging them as such garnishees from liability to the plaintiff in the case.
C. M. Higley, for plaintiff in error.
D. M. Thorp, and J. W. Tucker, for defendants in error.
In a suit by Tuthill against Moulton to recover money upon a promissory note and upon an account, Mayer, Spirit Spring Lodge No. 159, I. O. O. F., and Cawker City Lodge No. 41, A. O. U. W., were garnishees, under the provisions of chapter 151, Laws of 1889 (Gen. Stat. 1899, §§ 4450-4473). By this proceeding Tuthill, the plaintiff below, seeks to have reversed a judgment discharging said garnishees from liability to him as such. They were not served with a copy of the case-made or with notice of its settlement, as required by the order of the court, nor are they parties to this proceeding. The defendant in error Hattie M. Moulton moves the court to dismiss the petition in error for these reasons.
In Mortgage Co. v. Lowe, 53 Kan. 39, 35 P. 829, the supreme court said: "Where a judgment cannot be disturbed or reversed without affecting all of the defendants in the court below, all of such defendants must be made parties in the supreme court upon proceedings in error, to have the case disposed of upon its merits." In Loan Co. v. Lumber Co., 53 Kan. 677, 37 P. 132, the court said: "Where a judgment against several defendants is brought up to the supreme court for review, and it appears that a modification or reversal will affect a defendant who has not been made a party, the proceedings in error will be dismissed." In Investment Co. v. National Bank, 56 Kan. 9, 42 P 321, the supreme court said: "The absence of a party from a proceeding in error who may be prejudicially affected by a modification or reversal of a judgment defeats the jurisdiction of the supreme court and prevents a review of any of the rulings made in the cause." To the same effect are Pierce v. Downey, 56 Kan. 250, 43 P. 223; Mathewson v. Senior, 3 Kan.App. 117, 42 P. 827; Lumber Co. v. Haines, 3 Kan.App. 316, 45 P. 97; Bain v. Conn. M. Life Ins. Co., 3 Kan.App. 346, 40...
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Grant v. Reed
...of failure to do so the appeal must be dismissed. To the same effect, although not cited by appellee as authority, is Tuthill v. Moulton, 9 Kan.App. 434, 58 P. 1031. decision is particularly significant for the reason, that 9 Kan.App. at page 435, 58 P. at page 1032, in the opinion in comme......
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Stephens College v. Long
... ... garnishee is a necessary party. Yerkes v. McGuire, ... 54 Kan. 614, 38 P. 781; Gregg v. Baldwin, 10 ... Kan.App. 577, 62 P. 727; Tuthill v. Moulton, 9 ... Kan.App. 434, 58 P. 1031; See also Greenman v ... Melbye, 78 Minn. 361, 81 N.W. 21; First Nat. Bank of ... Hennessey v ... ...