Walnut Valley State Bank v. Stovall

• Decision Date: 01 July 1977
• Docket Number: No. 48306,48306
• Citation: 566 P.2d 33,1 Kan.App.2d 421
• Parties: The WALNUT VALLEY STATE BANK, a corporation, Appellant, v. Merle J. STOVALL and Emma M. Stovall a/k/a Emma M. Medlin, Appellees, and The Towanda State Bank, Garnishee, Defendant.
• Court: Kansas Court of Appeals

Page 33

566 P.2d 33

1 Kan.App.2d 421

The WALNUT VALLEY STATE BANK, a corporation, Appellant, v. Merle J. STOVALL and Emma M. Stovall a/k/a Emma M. Medlin, Appellees and The Towanda State Bank, Garnishee, Defendant.

No. 48306.

Court of Appeals of Kansas.

July 1, 1977.

Syllabus by the Court

1. Upon acceptance and approval of the bond on appeal by the county judge in the form presented, no further security was required in order to perfect the appeal.

2. The time within which a docket fee is paid is secondary to actual payment. Since payment of the docket fee affects only the clerk of the district court, and an adverse party is not affected by the time of the payment of the docket fee, it should not be regarded as jurisdictional. (Following Avco Financial Services v. Caldwell, 219 Kan. 59, Syl. 1, 547 P.2d 756.)

3. A bank checking account held in joint tenancy with right of survivorship is subject to garnishment by the judgment creditor of but one of the depositors, but only to the extent of the debtor's equitable interest in that account, and parol evidence is allowable to establish that interest.

4. Under the facts and circumstances set forth in the opinion, the trial court did not err in overruling plaintiff's motion to dismiss, in denying plaintiff's motion for a new trial, or in sustaining defendant's motion to vacate and set aside the order of garnishment.

Morgan Metcalf of Coutts, Coutts & Metcalf, El Dorado, for appellant.

No appearance for appellees.

Before SPENCER, P. J., and ABBOTT and SWINEHART, JJ.

SPENCER, Judge:

This is an appeal from a judgment which vacated and set aside an order of garnishment.

Plaintiff obtained judgment against defendants Merle J. and Emma M. Stovall. Thereafter, the Stovalls were divorced and Emma married Archer B. Medlin. The Medlins established a joint checking account at The Towanda State Bank and each of them signed the bank signature card. Thereafter, and upon application of the plaintiff, an order of garnishment was issued to the garnishee, which answered stating that Emma had a checking account with that bank in the amount of $411.52. Three days thereafter, Emma moved to vacate the order of garnishment, which motion was overruled by the county court. Emma appealed to the district court, which heard the matter and entered judgment sustaining the motion to vacate and to set aside the order of garnishment, and assessed costs to the plaintiff.

At the outset of the trial, plaintiff moved to dismiss the appeal for the reason that the defendants had failed to pay the docket fee of $35 as required by K.S.A. 60-2001, and for the further reason that there was no surety on the appeal bond as provided by K.S.A. 61-2102.

Plaintiff argued to the trial court that the language of K.S.A. 61-2102 that "(u)pon filing the notice of appeal and such security for costs as may be required, the appeal shall be deemed perfected," required that, in order to have an effective bond, there must be both a principal and a surety on that instrument.

The record reveals that, in conjunction with the notice of appeal from the county court to the district court, a bond on appeal was filed whereby Archer B. Medlin bound himself to pay all costs of the appeal. The bond was approved as evidenced by the following statement over the signature of the county judge:

"Being fully satisfied as to the sufficiency of the above surety, the above bond is taken and approved by me this 20 day of August, 1975."

In the case of Underwood v. Allmon, 215 Kan. 201, 523 P.2d 384, it was held:

"Under the provisions of K.S.A. 1973 Supp. 61-2102 governing civil appeals from a county court to the district court, the filing of an appeal bond to secure the costs is not mandatory and is necessary to perfect an appeal only when required by the judge of the county court from which the appeal is taken." (Syl. 1.)

With the acceptance and approval of the bond on appeal by the county judge in the form presented, no further security was required in order to perfect the appeal.

With respect to the failure to pay the docket fee prior to the hearing in the district court, the record reveals that, in response to an argument by plaintiff in support of the motion to dismiss on this ground, the trial judge said:

"The Court feels that is right. I will give you a certain amount of time to get it paid."

to which the defendants responded:

". . . We will make provisions to pay the docket fee today. . . ."

and the matter went on to trial. The argument here is based on K.S.A. 1975 Supp. 60-2001(a ), which provided:

"No case shall be filed or docketed in the district court, whether original or appealed, without payment of a docket fee in the amount of thirty-five dollars ($35) to the clerk of the district court."

In Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756, it was held:

"The time within which a docket fee is paid is secondary to actual payment. Since payment of the docket fee affects only the clerk of the district court, and an adverse party is not affected by the time of the payment of the docket fee, it should not be regarded as jurisdictional." (Syl. 1.)

We hold that the trial court did not err in denying plaintiff's motion to dismiss for failure to pay the docket fee prior to trial or for the alleged omission in the appeal bond.

Plaintiff argues that notwithstanding the issue being litigated was simply whether or not the funds in the joint checking account were subject to garnishment, the court nevertheless allowed Emma to testify, over objection, to certain matters totally irrelevant and immaterial to that issue. This concerned such things as substantive portions of Emma's divorce decree; that her former husband was to pay for the automobile upon which the plaintiff had a lien and which plaintiff subsequently repossessed; and that Emma received alleged unfair treatment when the automobile was repossessed by plaintiff. Plaintiff contends that such testimony was offered solely for the purpose of prejudicing plaintiff in the eyes of the court and suggests that the strategy was an unqualified success as was evidenced by certain remarks of the trial judge as shown in the record.

As stated in State v. Brown, 217 Kan. 595, 538 P.2d 631:

"Admissibility of evidence is largely within the discretion of the trial judge, subject to exclusionary rules. . . .

"In discussing relevancy, we have frequently said that to be admissible in the trial of a case evidence must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. . . ." (217 Kan. at 599, 538 P.2d at 634.)

There is some testimony in the record to indicate that plaintiff's judgment was an outgrowth of the loan to the Stovalls prior to their divorce, and it is difficult to perceive how the testimony of which plaintiff complains was relevant to the issue of whether the funds in the joint account were subject to garnishment. However, this was a trial before the judge and as stated in State v. O'Neal, 204 Kan. 226, 461 P.2d 801:

". . . When there is no jury to be misled by the evidence there is a strong presumption on appeal that the trained mind of the trial judge was not led astray by such evidence and that proper limitations on weight and probative force were applied. . . ." (204 Kan. at 230, 461 P.2d at 804.)

Even as we concede that the disputed testimony is presumed to have been considered by the judge and did enter into his decision per Supreme Court Rule No. 116, 214 Kan. xxxvii (now Rule No. 165, 220 Kan. LXVI), the record before us rebuts that presumption and we must conclude from the record that, in the final analysis, the decision of the trial judge was based on the sole fact that Mr. Medlin was the owner of the funds deposited to the joint account. In Bott v. Wendler, 203 Kan. 212, 453 P.2d 100, it is said:

". . . K.S.A. 60-259 is couched in discretionary language, and the overriding rule is that the granting of a new trial on the grounds of surprise or newly discovered evidence is discretionary on the part of the district court, and it will not be reversed unless a clear abuse of discretion is shown. . . ." (203 Kan. at 229, 453 P.2d at 113.)

We find no clear abuse of discretion and hold there was no error in denying the motion for new trial.

After the hearing, the trial judge issued his opinion letter dated October 14, 1975, to counsel, which contained his findings of fact as follows:

"I have read the citations which you gentlemen provided me and find that the garnishment of the bank account held by the Towanda State Bank in the joint account of Archer B. Medlin and Emma Maye Medlin should be set aside. From this ruling it is obvious that I do not reach the same conclusions as the author of the note in the Washburn Law Journal and frankly I was more impressed with the cases set forth at 11 A.L.R. 3, Page 1487 under the section heading of 'Where the Funds in the Act Belong to the Husband Alone.' I feel that this is the situation here and that the funds in said bank account are the property of Mr. Medlin and that the account was established as a joint account for the convenience of Mr. Medlin when he was on the road driving a truck. It is the Court's recollection that it has been at least 6 months since Emma Medlin has been employed and that any loan made by the Liberty Loan Corporation of Hutchinson, Kansas was made primarily to Archer Medlin in March of 1975 and was not in fact made to Emma Medlin." (Emphasis added.)

We have not been favored with an appellee's brief. However, the status of the account created by Archer and Emma Medlin at The Towanda State Bank as a "joint account" has not been challenged at any stage of these proceedings. We accept the fact that it is a joint account, which by the depositor's contract with that bank is...