Графични страници
PDF файл
ePub

person presumably a resident of Kansas for a debt due from the foreign corporation to a non-resident employe of the corporation not present in Kansas, where the debt was created outside of Kansas and was exempt from garnishment in the state where the defendant and the garnishee resided and where the debt was created, but was not exempt under the laws of Kansas. Burlington & M.R. Co. v. Thompson, 31 Kan. 180; S. C. 1 Pac. Rep. 622; S. C. 47 Amer. Rep. 497; S. C. 18 Cent. Law J. 192, and pote 194, et seq.

But the plaintiffs in error (defendants below) claim that no person or corporation can be garnished with regard to property or choses in action which are beyond the jurisdiction of the state, or are exempt from garnishment process in the state where the situs of such property or choses in action may be considered to be; that the situs of the debt in question is where it was created, where it was to be paid, and where all the parties reside; but it is also claimed by the plaintiffs in error (defendants below) that such debt is nevertheless exempt from garnishment process whether its situs be considered as in Kansas or in Missouri, or in both. It is claimed that the debt may be considered as in the nature of a trust fund set apart by the laws of Missouri for the use and benefit of the family of Ridgway, and that garnishment proceedings cannot reach to such fund so as to divert it from the purpose for which it was set apart. It is claimed that the exemption of this fund from judicial process is an incident to the debt itself, or a condition thereof, which will follow the debt into whatever jurisdiction the debt itself may be considered as having passed; that the exemption being an incident of the debt is equally transitory with the debt. It is claimed that whenever a debt created under the laws of one state is carried into another, all its incidents and conditions are carried along with it. It is claimed that where the debtor and creditor and the garnishee are all residents of the same state, and the debt was created in such state, the exemption is not only such a condition or incident to the debt that it will follow the debt wherever the debt may go, but also that the relation or status existing between the parties by reason of the debt and the exemption laws of the state where all the parties reside so follows the parties that if a part of such relation or status is enforced in any jurisdiction, all must be enforced, the exemption as well as the debt; and many of the various relations existing in society, such as marriage, agency, trusteeship, corporations, partnership, etc., are cited as illustrations of relations created under the laws of one state and being recognized and enforced in other states. It is also claimed that the exemption is a vested right in rem, which follows the debt into any jurisdiction in which the debt may be considered as going. It is also claimed that because all the parties reside in Missouri, and the debt was created there, and is payable there, and was exempt from garnishment process under the laws of that state, the debt should be held to be exempt in other states, under the rules of comity existing between states.

The plaintiffs in error (defendants below) cite the following, among other authorities: Pierce v. Chicago d N. W. Ry. Co., 36 Wis. 283; Baylies v. Houghton, 15 Vt. 626; Tingley v. Bateman, 10 Mass. 343; Sawyer v. Thompson, 4 Fost. (N. H.) 510.

The defendants in error (plaintiffs below) claim that the debt from the railway company to Ridgway is not exempt from garnishment process in Kansas, and cite, among other authorities, the case of the Burlington & M. R. Co. v. Thompson, supra, and the authorities there cited. That case, however, is not applicable to the present case, for the following reasons: The plaintiff in that case was not shown to have been a resident of the same state as the defendant and garnishee, nor a non-resident of Kansas, and presumably he was a resident of Kansas. In that case it was not shown that the defendant had ever been in Kansas, nor was it shown that his earnings were necessary for the maintenance of his family, and presumably they were not, and therefore, presumably, such earnings were not exempt from garnishment process under the laws of Kansas, and would not have been even if he had been a resident of Kansas.

We are inclined to think that the debt due from the railway company to Ridgway is exempt under the laws of this state. Seymour v. Cooper, 26 Kan. 539; Muzzy v. Lantry, 30 Kan. 49; S. C. 2 Pac. Rep. 102; Civil Code, $ 490; Just. Code, $ 157. Under the sections above cited, the earnings of a debtor for his personal services at any time within three months next preceding the attempt to subject such earnings to the payment of his debts are exempt from such payment if it be made to appear by the debtor's affidavit or otherwise that such earnings are necessary for the use of his family, supported wholly or partially by his labor; and no distinction is made by such sections between residents and non-residents, or between debts created in Kansas and debts created elsewhere; and the weight of authority seems to be that where the statutes do not make any distinctions that no such distinctions exist; that if the statutes do not restrict the exemption of property for the payment of debts to residents, or to some other particular class of persons, the courts have no authority to make such restriction; and the statute will apply to all classes, non-residents as well as residents. Mineral P. R. Co. v. Barron, 83 Ill. 365; Sproul v. McCoy, 26 Ohio St. 577; Hill v. Loomis, 6 N. H. 263; Haskill v. Andros, 4 Vt. 609; Lowe v. Stringham, 14 Wis. 241. And the case of Leiber v. Union Pac. R. Co., 49 Iowa, 688, seems to recognize this principle, though the question is not decided. See, also Freem. Ex. $ 220, and cases there cited. And the garnishee may interpose the exemption as well as the debtor himself. Mull v. Jones, 33 Kan. 112. S. C. 5 Pac. Rep. 388.

But it makes no difference in this case, as both the garnishee and the debtor have interposed the exemption. Under the general exemption laws of Kansas (Comp. Laws 1879, c. 38) it is necessary that the party supposed to be entitled to the exemption should be a resident of this state; but such is not the case with

regard to the exemption under section 490 of the Civil Code and section 157 of the Justices' Code.

Not wishing to state the law more or less broadly than the facts of this case will warrant, we shall decide it purely upon its own facts; and therefore the decision will be in substance as follows: In a proceeding in garnishment, where all the parties are non-residents of the state of Kansas and are residents of the state of Missouri, and the thing attempted to be attached by the garnishment proceedings is a debt created and payable in the state of Missouri, but the garnishee does business in Kansas and is liable to be garnished in this state, and the other parties come temporarily into Kansas, and, while in Kansas, the plaintiff, who is a creditor of the defendant, who is a creditor of the garnishee, commences an action in Kansas against the defendant, and serves a garnishment summons upon the garnishee, and the debt of the garnishee to the defendant is, by the laws of the state of Missouri, exempt from garnishment process, and such debt also seems to come within the exemption provisions contained in section 490 of the Civil Code of Kansas and section 157 of the Justices' Code of Kansas, exempting certain earnings of the debtor from the enforced payment of his debts, such debt is exempt from garnishment process in Kansas.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

(All the justices concurring.)

(34 Kan. 155)

McCLELLAND and others v. ALLISON.

Filed October 9, 1885.

1. APPEAL FROM FINAL JUDGMENT OF JUSTICE OF THE PEACE.

In proceedings on appeal from the final judgment of a justice of the peace, the district court has the power to order a change or renewal of the undertak ing, when the surety thereto is insufficient, or the undertaking insufficient in

form or amount. 2. SAME-BOND-PARTNERSHIP-RENEWAL.

Where a final judgment is rendered before a justice of the peace against a partnership consisting of two members, and one of the partners, who is a practicing attorney residing in the county where the cause was tried, within 10 days from the rendition of the judgment, goes before the justice and gives an appeal-bond, signing the partnership name as principal, and his individual name as surety, and the appeal-bond is otherwise in due form and is accepted and approved by the justice, and thereafter the appeal is docketed in the district court for trial, held, that upon a motion of the appellee to dismiss the appeal, the district court has the power to order a change or renewal of such undertaking so as to comply with the statute. Error from Neosho county.

On March 31, 1884, Alexander Allison filed with a justice of the peace of Neosho county his bill of particulars, and therein demanded judgment against G. W. McClelland and D. E. McCleiland, partners as McClelland Bros., for $285, with interest from March 15, 1884. Judgment was rendered in the action before the justice in favor of Allison against the McClelland brothers, on May 5, 1884, for $288 debt, and $12.50 costs. On May 14, 1884, G. W. McClelland, of the firm of McClelland Brothers, went before the justice, and executed the following bond:

APPEAL-BOND. “Before GEORGE W. Ashby, a justice of the peace of Tioga township, Neosho county, Kansas.

"STATE OF KANSAS, NEOSHO COUNTY_SS.. “Alexander Allison, Plaintiff, vs. McClelland Bros., Defendants. “Whereas, the defendants, McClelland Bros., intend to appeal from a judgment rendered against them in favor of the plaintiff for $288 judgment, and $12.50 costs, on the fifth day of May, 1884, by the undersigned justice of the peace of Tioga township in said county: now, we, the undersigned, residents of said county, bind ourselves to said plaintiff in the sum of six hundred dollars that said defendants shall prosecute their appeal to effect, and without unnecessary delay, and satisfy such judgment and costs as may be rendered against them therein.

MCCLELLAND BROS.
“G. W. MCCLELLAND.'

This was approved on said May 14, 1884, by GEORGE W. Ashby, the justice of the peace; afterwards the case was docketed in the district court of Neosho county, and came regularly on for trial at the July term of said court for 1884, and on July 8, 1884, Allison appeared specially, by his attorney, Amos S. Lapham, for the purpose of presenting a motion to dismiss the appeal. The grounds of his motion wereFirst, that no appeal-bond had been given in the action, as required by law; second, that the pretended appeal-bond given by the defendants was not signed by any surety,—the pretended surety thereto being one of the defendants; third, that the pretended surety to the appeal-bond, G. W. McClelland, was, at the time of the signing of the bond, and still is, a practicing attorney at law, residing in Neosho county. Upon the hearing of the motion, it was admitted that G. W. McClelland, who signed the appeal-bond, was one of the defendants and a practicing attorney at law in said Neosho county. Pending the hearing of the motion, the defendants requested the court to be permitted to execute a new or amended appeal-bond, with good and sufficient surety, which request the court overruled upon the ground that it had no power or discretion to permit another bond to be given. The court thereupon sustained the motion, and dismissed the appeal at the costs of the defendants, amounting to $29.90. The defendants excepted, and bring the case here.

C. F. Hutchings, for plaintiffs in error.
Amos S. Laphim, for defendant in error.

Horton, C.). The question before us fo- determination is whether the district court possessed the power, under the circumstances of this case, to permit the filing of an amended appeal-bond. Section 121, of Civil Procedure before Justices, reads:

“The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned--First, that the appellant will prosecute his appeal to effect, and without unnecessary delay; second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant."

Section 131 of said procedure provides :

“In proceedings on appeal, when the surety in the undertaking shall be insufficient, or such undertaking may be insufficient in form or amount, it shall be lawful for the court, on motion, to order a change or renewal of such unlertaking, and direct that the same be certified to the justice from whose judgment the appeal was taken, or that it be filed in said court.”

It is claimed that the bond given is a mere nullity, and therefore furnishes no basis sufficient to authorize an amendment. The surety upon the bond ought not to have been accepted, because he is a member of the firm of McClelland Bros., and, also, because he is a practicing attorney residing in Neosho county. Therefore the appealbond is not such a one in all respects as is required by the statute. Even, however, if the bond be defective, it having been accepted, filed, and approved by the proper officer, we think it furnishes sufficient basis to order a change or renewal thereof. The provisions of said section 131 should be liberally construed with a view to promote its object and assist parties in obtaining justice. Again, as a rule, appeals are to be favored, and mere technical defects or omissions are to be disregarded. In this case G. W. McClelland signed the undertaking as surety, and was accepted by the justice as surety. It is true, the surety is insufficient, but as the undertaking is otherwise sufficient in form and amount and is only defective on account of the surety thereto, the district court had the power to permit an amended appeal-bond to be filed. It is difficult to conceive any just cause of which the defendants in error have to complain, if the district court shall accept a sufficient bond. All of the parties have proceeded as though an appeal had been taken from the judgment of the justice of the peace, and, pending the motion to dismiss the appeal, plaintiffs in error offered and asked permission to file a sufficient bond. Upon the first occasion that the appeal-bond was challenged the parties thereto offered to rectify it. In furtherance of justice, this ought to have been permitted. An appeal will give all the parties a full and fair trial upon the merits. Coleman v. Newby, 7 Kan. 83; Mitchell v. Gott, 18 Iowa 424; Irwin v. Bank, 6 Ohio St. 81; Shelton v. IVade, 4 Tex. 148; Brobst v. Brovst, 2 Wall. 96; Seymour v. Freer, 5 Wall. 822. In Loritt v. Railroad Co., 26 Kan. 297, the bond was not simply defective or irregular, or insufficient in amount, or insufficient in security, but a bond which, running to a party entirely a stranger to the record, was a perfect nullity.

Bp,n0.3–16

« ПредишнаНапред »