Wagner v. Mahaffey

• Decision Date: 07 December 1965
• Docket Number: No. 44152,44152
• Citation: 195 Kan. 586,408 P.2d 602
• Parties: H. L. WAGNER, Appellant, v. John F. MAHAFFEY, Appellee.
• Court: Kansas Supreme Court

Page 602

408 P.2d 602

195 Kan. 586

H. L. WAGNER, Appellant, v. John F. MAHAFFEY, Appellee.

No. 44152.

Supreme Court of Kansas.

Dec. 7, 1965.

Syllabus by the Court

1. A petition in an action for a declaratory judgment is considered and it is held the facts stated show an actual controversy concerning a matter specifically covered by the statute. (K.S.A. 60-1701.)

2. In an action for a declaratory judgment where the sole and only issue framed by the petition is a question of law a final determination may be had on a motion for summary judgment under K.S.A. 60-257.

3. Questions challenging the constitutionality of a statute are approached with a disposition to determine them in such a manner as to sustain the validity of the enactment in question.

4. Subsection (d) of K.S.A. 60-2310 denying the benefits of garnishment to holders of assigned accounts, under terms had conditions prescribed therein, applies only to the personal earnings of heads of family as construed within the purview of the heading and provisions of K.S.A. 60-2310.

5. Subsection (d) K.S.A. 60-2310 as construed herein, which precludes garnishment of a portion of the personal earnings of heads of family under the conditions set forth in the section, where the creditor sells, or assigns the account to a collector or collecting agency for collection, is not in violation of the 'equal protection of the laws' clause of the fourteenth amendment to the federal constitution or of sections 16 and 17 of article 2 of the Kansas constitution, following Miller v. Keeling, 185 Kan. 623, 347 P.2d 424.

Harold L. Wagner, pro se.

Roy Kirby, Coffeyville, for appellee.

KAUL, Justice.

This is an appeal from a summary judgment entered by the trial court in favor of defendant (appellee) in a declaratory judgment action challenging the constitutionality of subsection (d) of K.S.A. 60-2310.

Appellant H. L. Wagner, hereinafter referred to as plaintiff, in his capacity as a bill collector, as he styles himself in his petition, purchased from the receiver of a defunct credit union in Coffeyville a promissory note, payable to the credit union and executed by the defendant, John F. Mahaffey. The note was reduced to judgment by the plaintiff in the Court of Coffeyville and thereafter he threatened garnishment process against defendant's wages. The defendant, through his attorney, directed plaintiff's attention to the statute and informed him that if garnishment process were issued suit for wrongful garnishment would be filed against him. Thereafter the plaintiff, pro se, filed the instant action in the District Court of Montgomery County, Kansas.

The defendant filed a motion for summary judgment on the grounds that the petition showed the defendant was entitled to judgment as a matter of law.

The motion was set for hearing and argued to the trial court by defendant. The plaintiff filed a menorandum in opposition to the motion but did not appear for argument. The trial court sustained the motion and entered judgment for defendant. Whereupon the plaintiff perfected this appeal. The appeal has been submitted to this court on the record and briefs of both parties, neither party appearing for argument.

The journal entry of judgment of the trial court does not reflect the basis of the trial court's ruling but merely directs that judgment be entered in favor of defendant. The defendant supports his motion for summary judgment on the grounds that the petition did not state a proper case for declaratory judgment in that it failed to present a justiciable issue within the requirements of the declaratory judgment statute (K.S.A. 60-1701) and in the alternative that subsection (d) of section 60-2310 K.S.A. is constitutional.

Both propositions are considered in this opinion.

Our attention is first directed to the question of whether or not the petition sets out a proper case for declaratory judgment. Article 17 of the new Kansas Code of Civil Procedure authorizing declaratory judgments replaces G.S.1949, 60-3127 to 60-3123c, the prior law. Jurisdictional requirements for declaratory judgment actions are set out in K.S.A. section 60-1701 which replaces G.S.1949 60-3127. The only change made is the specific inclusion of 'express trusts' in 60-1701 which had been omitted in 60-3127, the effect being to eliminate the necessity for section 60-3132a of the prior act dealing with express trusts. Such change is irrelevant to our consideration in this case. It is also to be noted that G.S.1949, 60-3128 providing for procedure in declaratory judgment actions has been replaced by the enactment of K.S.A. 60-257, the substance of which is merely that procedure for obtaining a declaratory judgment shall be in accordance with the provisions of the rules of civil procedure set out in Article 2 of the new code.

Since K.S.A. 60-1701 specifically includes controversies involving the validity or interpretation of statutes it follows that the only issue to be resolved in our consideration here is whether or not appellant's petition contains sufficient allegations of fact to indicate the existence of an actual controversy. At this point we find it necessary to quote portions of plaintiff's petition in the court below pertinent to the issue now under consideration.

'(a) This action is filed pursuant to the provisions of Article 17 and Section 60-257, revised code of civil procedure, for the purposes of securing plaintiff's constitutional rights and his statutory right of garnishment. Plaintiff seeks a declaration that Section 60-2310(d), revised civil code, is unconstitutional and void.

'(b) Plaintiff has a valid judgment, predicated on a promissory note, against the defendant in the Court of Coffeyville, Montgomery County, Kansas, Case No. 83-93; and plaintiff desires to execute this judgment through the process of garnishment but such execution is denied by the discriminatory operation of Section 60-2310(d), revised civil code, causing the judgment to lose its value.

'(c) Plaintiff claims his rights under Chapter 61, Article 4, General Statutes, 1949, to garnishee the wages, bank funds and other credits of the defendant in the execution of said judgment.

'(d) Defendant contends that Section 60-2310(d), revised code of civil procedure, bars the plaintiff from garnishment in Case No. 83-93.

'(e) Defendant's attorney notified plaintiff in writing as follows: 'Please be advised that if garnishment process is issued through your efforts, seeking to attach Mr. Mahaffey's wages, suit will be instituted against you for wrongful garnishment.'

'(f) An actual controversy exists between the parties herein as shown by defendant's letter which is attached hereto, marked Exhibit A, and made a part thereof by reference.

'Plaintiff complains against the unconstitutionality of Section 60-2310(d) which reads as follows:

Section 60-2310

Revised code of civil procedure

Exemptions of Personal Earnings of Heads of Family

Assignment of account (d)

If any person, firm or corporation sells or assigns his account to any person or collecting agency, or sends or delivers the same to any collector or collecting agency for collection, then such person, firm or corporation or the assignees of either, shall not have nor be entitled to the benefits of garnishment.'

It is well established in this jurisdiction that even in declaratory judgment actions involving the validity of a statute there must be an actual controversy between the parties. Courts will not render advisory opinions on abstract questions of law about which there is only a disagreement rather than an actual controversy between the parties. (West v. City of Wichita, 118 Kan. 265, 234 P. 978; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P.2d 1042; Riley v. Hogue, 188 Kan. 774, 365 P.2d 1097.)

An analysis of the petition filed in this case, however, reveals that there is more involved than merely a difference of opinion as to the validity of the statute in question. The plaintiff alleges he desires to execute on his judgment against defendant through the process of garnishment but defendant's attorney has notified him that if such garnishment process is issued suit will be instituted by him for wrongful garnishment. These allegations, which are admitted on a motion for summary judgment, place the plaintiff in the position of exposing himself to suit for wrongful garnishment by pursuing the garnishment process or, in the alternative, asking for prior determination by way of declartory judgment such as was his choice in this case. Under the facts alleged in the petition we find the dispute between the parties as to the constitutionality of the statute in question amounts to a justiciable issue within the requirements of the declaratory judgment act.

In considering this matter we have noted a number of decisions of this court indicating that under the previous code of procedure a demurrer would not lie to a petition for a declaratory judgment if the petition showed that an actual controversy existed. The rule being that if an actual controversy is alleged in a petition for a declaratory judgment it is the duty of the district court to overrule the demurrer to the petition and proceed with the case in accordance with the provisions of the act. (Huber v. Schmidt, 188 Kan. 36, 360 P.2d 854 and cases cited therein.)

Under the procedure of the revised code (K.S.A. 60-257) declaratory judgment actions are subject to the same rules as other cases, including the right of discovery and motion for summary judgment.

In the case before us, the facts are undisputed and the sole and only question is one of law, thus an issue is framed that may be wholly and finally resolved on a motion for summary judgment.

Since we have concluded that the petition states a cause of action for declaratory judgment and the order of the trial court in sustaining the motion for summary judgment was so decisive as to be considered a final determination we...