Western Stoneware Co. v. Pike County Mineral Springs Co.
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 1083,172 Mo.App. 696 |
| Parties | WESTERN STONEWARE COMPANY, Respondent, v. PIKE COUNTY MINERAL SPRINGS COMPANY, Defendant; VANDEVENTER TRUST COMPANY, Garnishee, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. B. H. Dyer, Judge.
AFFIRMED.
Judgment affirmed.
Henderson Marshall & Becker and J. D. Hostetter for appellant.
A garnishment by attachment will only lie where a creditor may maintain a suit to recover a debt. Hardware Co. v Lang, 54 Mo.App. 147. So where both parties reside in a county or counties other than that in which the property is found jurisdiction is vested only in the circuit court of the county in which the property is found. Dennis v Bailey, 104 Mo.App. 638. The circuit court of Pike county has no more jurisdiction over the garnishee in this case than if it had sued the garnishee directly to recover property in its hands belonging to the defendant and had the summons served in the city of St. Louis, returnable to the circuit court in Pike county.
John W. Matson for respondent.
The garnishee does not claim that there was any defect in the service process upon it, and if there was, that defect was waived by its filing its answer, and in addition to filing its answer it filed its various motions in this case. Cook v. Spence & Harper, 143 Mo.App. 157; Brewing Co. v. Forgey, 140 Mo.App. 605; Dodge v. Knapp, 112 Mo.App. 513; Reed v. Bright, 232 Mo. 410-411; Potter v. Whitten, 161 Mo.App. 128; Marx v. Hart, 166 Mo. 503; Potter v. Whitten, 161 Mo.App. 118.
--This is an appeal on the part of the garnishee from a judgment entered against it in favor of plaintiff. The principal question for consideration relates to the jurisdiction of the circuit court to proceed in the premises.
It appears the plaintiff, Western Stoneware Company, recovered a judgment against the defendant, Pike County Mineral Springs Company, a resident of Pike county, for $ 419.50, and $ 13.50 costs, in the circuit court of Pike county. It seems the defendant kept a checking account on deposit with the Vandeventer Trust Company in the city of St. Louis, and, therefore, an execution was issued on May 20, 1911, on plaintiff's judgment against defendant and directed to the sheriff of the city of St. Louis. At the instance of plaintiff's attorney, the sheriff of the city of St. Louis, on the 22d day of May, 1911, summoned the Vandeventer Trust Company as garnishee, by declaring to it that he attached in its hands all debts due from it to the defendant, etc., etc. The garnishee was also summoned to appear before the circuit court of Pike county at the return term of the writ, on the second Monday in June, 1911, to answer such interrogatories as might be exhibited and propounded to it by the plaintiff.
At the June term of the Pike County Circuit Court, and on the 13th day of June, the plaintiff filed therein certain interrogatories to be answered by the Vandeventer Trust Company, garnishee, as to the latter's indebtedness to the defendant and as to any goods, chattels, moneys, etc., in its possession belonging to defendant. Two days thereafter, during the same term, on June 15, the cause was continued by the court of its own motion. On the following day, June 16, 1911, and during the same term of the court, the garnishee filed its answer in writing to the plaintiff's interrogatories, admitting that at the time it was summoned as garnishee the defendant had a deposit with it in the sum of sixty cents, and further answering that such deposit was a checking account subject to the checks to be drawn by the president and treasurer of the defendant, Pike County Mineral Springs Company, and that all deposits prior to said time had been checked out by defendant and all of the checks returned to the defendant, except one for $ 200, which was still in the custody of the garnishee. Besides being signed by the garnishee, this answer was indorsed by Robert M. Zeppenfeld, as attorney for it. On the same day that this answer was filed by the garnishee, on the application of the plaintiff, the court set aside the order of continuance entered the day before, and granted the plaintiff leave to plead to the garnishee's answer on or before the first day of the next regular term of the court, and the cause was then continued. On the following day, Saturday, June 17, the court adjourned until court in course. The next regular term of the court convened pursuant to law on Monday, July 17, 1911, and on that day plaintiff filed its denial of the garnishee's answer in accordance with the leave of court theretofore granted at the prior term. The garnishee omitted to file a reply to the plaintiff's denial of its answer, though no further proceedings were had in the matter, from the 17th of July to the first day of August.
Thereafter, on the first day of August and during the July term, the matter was taken up on the garnishee's answer and the plaintiff's denial thereof and the facts pleaded by plaintiff for a recovery notwithstanding the answer of the garnishee. The garnishee, having failed to reply to the plaintiff's denial of its answer, failed likewise to appear at the hearing on August 1st. The court heard the evidence adduced by plaintiff and found that there was at the time of the service of the garnishment the sum of $ 841.50 in the hands of the garnishee belonging to defendant, and accordingly entered an interlocutory judgment against the garnishee for $ 491.50, principal--that is, the amount of plaintiff's judgment against defendant--and eleven dollars interest then accrued, and $ 13.50 costs, aggregating $ 516, and ordered that the garnishee pay the said sum into court on or before the 4th day of August, 1911, and continued further proceedings in the cause until August 4th.
The garnishee failed to pay the money into court as ordered, but instead appeared by its attorney on the 3d day of August, during the same July term, and filed a motion to set aside the finding of the court touching its indebtedness to defendant and the order entered against it on August 1st, on the following grounds:
First, because the plaintiff's denial of the garnishee's answer was not filed until July 17, 1911 and the garnishee was without knowledge or information that its answer had been denied until after the trial of the garnishment proceedings and the order entered on the first day of August.
Second, because the court was without jurisdiction over the garnishee or the subject-matter of the garnishment, for the reason that the issuance of an execution from the circuit court of Pike county to the sheriff of the city of St. Louis, and the service thereof by such sheriff on the garnishee, though in due form, was wholly ineffectual to confer jurisdiction on the court.
After a hearing, this motion was overruled and on the following day, August 4th, the garnishee, having failed to comply with the order of the court made theretofore on the 1st day of August, by paying the money into court, judgment was entered against it for the amount of $ 516 and the costs incident to the proceeding. Within four days thereafter, at the same term, the garnishee filed its motion for a new trial and urged therein that the court erred in overruling the garnishee's motion to set aside its interlocutory judgment of August 1st and erred in giving a final judgment on August 4th, and further erred in failing to prescribe a time within which the garnishee might file a reply to the plaintiff's denial of the answer, and further that the court was wholly without jurisdiction over the subject-matter of the action. Upon this motion being overruled and exceptions saved, the garnishee prosecutes its appeal here.
It is argued the judgment should be reversed for the reason the circuit court of Pike county was without jurisdiction over the subject-matter--that is, to condemn the fund on deposit with the garnishee, Vandeventer Trust Company, in St. Louis. It appears the defendant in execution--that is, the Pike County Mineral Springs Company--is a resident of Pike county where it was properly sued and the judgment on which the execution issued was recovered. The garnishee, Vandeventer Trust Company, is a resident of the city of St. Louis, and the service of the execution upon it and the levy thereof by the sheriff were made in that city. The Vandeventer Trust Company was the debtor of the Pike County Mineral Springs Company. Under section 1751, Revised Statutes 1909, the defendant in execution could have sued the Vandeventer Trust Company for its debt, either in St. Louis, where the trust company resided, or in Pike county, where the defendant in execution, Pike County Mineral Springs Company, resided, provided the Vandeventer Trust Company could be found in Pike county. But the trust company was not found in Pike county and therefore a suit would not lie against it there on the debt it owed to the defendant in execution. However, the Pike County Circuit Court is a court of general jurisdiction and no one can doubt that jurisdiction over the person may be waived by an appearance to an action. Had the defendant in execution sued the Vandeventer Trust Company for its debt in the court of Pike county, that court would have been without jurisdiction to give a valid judgment on the subject-matter of the debt, on the mere service of a summons in St. Louis, unless some appearance by the Vandeventer Trust Company to the merits were made, for the statute cited prescribes another venue in such circumstances. But if the court in which the suit is instituted possesses jurisdiction of the general class of cases to which the particular suit involved belongs, it is said to then possess jurisdiction...
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