Winterscheidt v. Winterscheidt

• Decision Date: 11 March 1922
• Docket Number: 23,136
• Citation: 205 P. 600,110 Kan. 649
• Parties: PETER F. WINTERSCHEIDT et al. (EMMA WEBER, Appellant), v. EDWARD PETER WINTERSCHEIDT et al. (F. M. WILSON et al., Appellants, LEN ROBERTS, Interpleader, Appellee)
• Court: Kansas Supreme Court

205 P. 600

110 Kan. 649

PETER F. WINTERSCHEIDT et al. (EMMA WEBER, Appellant), v. EDWARD PETER WINTERSCHEIDT et al. (F. M. WILSON et al., Appellants, LEN ROBERTS, Interpleader, Appellee)

No. 23,136

Supreme Court of Kansas

March 11, 1922

Decided January, 1922

Appeal from Brown district court; WILLIAM I. STUART, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GARNISHMENT--Immature and Contingent Liabilities Subject to Garnishment. Under the statute relating to garnishment, and following Bank v. Dondelinger, 103 Kan. 444, 175 P. 109, it is held that the unmatured and contingent liabilities involved herein were properly reached by the garnishment.

2. SAME--Service of Summons--Appearance Waives Defects in Service. The appearance and answer of Emma Weber, the defendant in the Roberts case, precluded her from subsequently questioning the service of the garnishment summons.

3. SAME--Orders in Garnishment Proceedings Properly Made. The orders appealed from held to have been properly made and with sufficient jurisdiction.

T. A Moxcey, of Atchison, for the appellants.

S. M. Brewster, of Topeka, and W. F. Means, of Hiawatha, for the appellee.

OPINION

WEST, J.:

Christian Winterscheidt died in 1915, owning 277 acres of land in Brown county. He left one-eighth of his estate to each of his eight children. Seven of them sold their interest in 57 acres of the land to their brother, John G. Winterscheidt, he agreeing to stand charged to the others for $ 425 each, and executed a quitclaim deed to them covering his undivided interest in the remaining 220 acres. This deed was deposited with a local bank to stand as security that when the 220-acre tract should be sold he would pay them from his share of the proceeds the amount due for their shares in the 57 acres. The deed was never taken from the bank or delivered or recorded.

Emma Weber, one of the sisters, had in 1918 given a mortgage on her one-eighth interest to the Citizens State Bank of Horton for $ 2,500, which was conceded to be a first lien. In January, 1919, the heirs, acting by Jacob J. Winterscheidt, contracted with Anna M. Burkart to sell her the 220-acre tract. The amount of the sale price in the contract was $ 39,300, which included a year's rent of $ 1,300. The purchaser paid into the bank $ 200, and the sellers agreed to make and deposit a deed to be held in escrow until the deal should be closed, they to furnish an abstract which the purchaser was to have a reasonable time to examine. If the purchaser should fail to make the payments she was to forfeit all amounts paid. The deed was made and deposited, and the abstract furnished, and the requirements thereon were such that a suit to quiet title was deemed necessary, and this is that suit.

Emma Weber's husband, M. J. Weber, had become heavily in debt, and she had signed a number of his notes and had given her mortgage for the $ 2,500, already referred to, for money to be used by him. He owed Len Roberts over $ 4,000 on notes which his wife had signed as surety. She owed a similar amount on a homestead which was mortgaged to Wilson, and a second mortgage to the Farmers State Bank for $ 840. On June 24, 1919, Len Roberts sued Emma Weber on his claim and caused garnishment summons to be issued to Anna M. Burkart, the summons being served on her on the same day. On June 26, 1919, Emma Weber and husband gave the mortgage on her undivided interest in the 220 acres to Wilson and the Farmers State Bank, already referred to. This was filed June 26. On November 24, Emma assigned her claim against her brother, John Winterscheidt, for $ 425 to Wilson to hold as security for her debt to him. November 24, 1919, Roberts recovered judgment against Emma Weber for his debt, no order being made in reference to the garnishment, the decision thereon being reserved.

Mrs. Burkart filed an answer setting up her contract of purchase and her information concerning all mortgages, but none of the mortgagees were brought in as parties, or appeared. Len Roberts appeared as interpleader in the suit, and set up that he had a lien by reason of his garnishment which he claimed was ahead of the interest of the Farmers State Bank and Wilson, both of which parties answered, setting up their mortgages. Wilson also set up the assignment of Emma Weber of her claim against her brother.

On December 22, 1919, the court quieted title in the Winterscheidt heirs subject to the rights of Mrs. Burkart and her contract against all the defendants, except the mortgagees and lienholders, and found that on consummation of the sale the proceeds should be paid into court, and the mortgages of the State Bank of Horton should be paid, and the balance of her one-eighth, less the costs, should be held to await the decision in controversy between Roberts and Wilson and the Farmers State Bank.

Judgment was given against Emma Weber for the Citizens State Bank of Horton which is a first lien. On February 9, 1920, the court decided for the interpleader in the matter against Wilson and the bank, who appeal.

It is contended that only a contingent liability was garnisheed in this case, and that such liability is not subject to garnishment proceedings. Counsel say: "It cannot surely be claimed that anything was owing from Mrs. Burkart until after the title was examined and...