101 Kan. 552 | Kan. | 1917
The opinion of the court was delivered by
Plaintiff appeals from an order sustaining the defendant bank’s demurrer to its petition, “for want of facts.”
In substance the charge was that the plaintiff brought two separate actions before a justice of the peace, one against two brothers as partners and the other against one of them individually, and recovered a judgment against the partnership for $64.10 and one against the brother singly for $103 and another for $38.80, each with interest and costs. That the defendant was summoned as garnishee in the actions and answered that it had to the credit of the' firm $307.69, but nothing belonging to the brother individually. That the bank had been ordered by the justice to hold this fund temporarily/and later pay into court sufficient to pay the judgment against the partnership. The petition further alleged that in fact this brother was owner
If, as a matter of fact, the fund to the credit of the firm actually belongs to the indiyidual judgment creditor and is kept covered as alleged in the petition no way is suggested by which it could be reached by garnishment process in justice court and the petition on its face discloses a right on the part of the plaintiff to proceed in the way and for the purpose attempted. (Ludes v. Hood, Bonbright & Co. 29 Kan. 49; Houghton v. Axelsson, 64 Kan. 274, 67 Pac. 825; Gen Stat. 1915, § 7426; 12 Cyc. 38.) The formality of a useless execution was not essential. (Taylor v. Stone & Lime Co., 38 Kan. 547, 16 Pac. 751.)
The order sustaining the demurrer of the defendant bank is reversed, and the cause remanded for further proceedings.