270 S.W. 407 | Mo. Ct. App. | 1925
Lead Opinion
A second summons was issued, and no return was made by the officer serving this summons, if it was served. The garnishee appeared and answered to the summons in the justice court, and the justice entered an order that the garnishee did have in his possession certain funds belonging to Cohen, and directed the garnishee to pay the amount of plaintiff's claim to the constable. Upon such garnishee's refusal, judgment was entered against him. The garnishee appealed to the circuit court, and judgment was again rendered against the garnishee, after which a motion for new trial was sustained. The court then permitted the plaintiff to file an amended denial to the garnishee's answer in which the garnishee set up the fact, after denying that he had any money belonging to Cohen or owed him any, that, after *448 Cohen had become indebted to plaintiff, he sold his stock of goods, merchandise, and fixtures, which had previously constituted a general grocery and meat business, for $550, and had entered into an agreement that this money was to be turned over to certain parties for the benefit of his creditors, and that, by virtue of such an agreement, the money was paid over to the garnishee; and, also, that the purchasers had failed to demand and receive from Cohen a written statement of the names and addresses of his creditors, as required by the Bulk Sales Law.
A trial was again had in the circuit court, which again resulted in a judgment against the garnishee, who is the appellant here.
The first and most serious question presented by this appeal is whether or not this judgment can be permitted to stand in view of the fact that the summons issued to the garnishee does not show any return thereon, or that it was served in any manner by the officer charged with the duty of making service. It is plaintiff's contention that the court had jurisdiction, because the garnishee entered his appearance generally both in the justice and the circuit court, filed answer, and went to trial upon the merits, and, therefore, cannot complain now. In support of this contention plaintiff cites the following authorities: Marx v. Hart,
The cases of Western Stoneware Co. v. Springs Co., and Marx v. Hart, supra, do not sustain plaintiff in his contention. These cases merely hold that, where the court has jurisdiction of theres in the first instance, it acquires jurisdiction over the person of the garnishee by his appearance, and the garnishee cannot complain that the court had no jurisdiction because of improper service *449 where such garnishee enters his appearance generally, and the court has otherwise obtained jurisdiction of the res.
The cases of Dodge v. Knapp, and Engraving Co. v. Railroad, supra, both by this court, seem to support plaintiff's contention, namely, that where the garnishee appears generally, he is in no position to complain after judgment against him, and that by such general appearance he confers jurisdiction upon the court for all purposes. But these holdings are not in accord with the general rule of law, or with the interpretation placed upon our statute by the Supreme Court and other courts of this State. There is some language used in Potter v. Whitten, supra, to the same effect, but such is merely obiter.
In the very early case of Epstein v. Salorgne,
"And it will not do to say that the garnishee, by appearing and answering the interrogatories propounded to it, and by payment of the debt into court, waived any objections to the jurisdiction, which otherwise it might have interposed. Whatever a garnishee may do respecting his own rights, he is powerless to do anything which will affect the rights of third persons, and if he is not legally served, nothing is attached in his hands."
This case has never been criticized by the Supreme Court since, and such court, as late as the case of Howell v. Sherwood,
It is true that the garnishee, by appearing, cannot complain of the judgment in so far as it affects him personally, but the statute must be strictly complied with before the court acquires jurisdiction of both the res and the person. The mere fact that the court may have jurisdiction of the person does not necessarily give it jurisdiction of the res. Jurisdiction of the res or subject-matter can neither be waived or conferred by consent. [Railroad v. Schweitzer, 246 Mo. l.c. 127,
In Hopkins v. Henson,
"Until the justice had jurisdiction of the subject-matter, he had no authority to render a judgment, and the appearance of the garnishees did not cure the lack of jurisdiction over the res."
In Fletcher v. Wear,
The Supreme Court of Utah, in the very instructive case of Bristol v. Brent,
The court had no jurisdiction of the res in this case, and, therefore, was in no position to render any binding or effective judgment in so far as the property or credits of Cohen were concerned. And this will necessitate the reversal of this case, because the evidence does not disclose that the officer made any return upon the summons of garnishment. We think this holding is in accordance with the requirements of our statute, and with the overwhelming weight of authority in this State, and elsewhere. [12 R.C.L., p. 826; Norvell v. Porter,
Addendum
The motion for rehearing is accordingly overruled. Daues,P.J., and Becker, J., concur.