In re Lewis, 72 P. 788

72 P. 788 | Kan. | 1903

The opinion of the court was delivered by

Smith, J.:

The imprisonment of petitioner is based on section 4966, General Statutes oí 1901, the material part of which reads :

“The judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contempt, in case- of refusal or disobedience.”

The principal point, relied on by counsel for petitioner is that when she was attached and brought before the judge to answer ,for contempt in failing to pay the money in her possession to the clerk for the benefit of the judgment" creditor she made a claim to the amount in her hands, and in her verified answer asserted that it belonged to her and not to S. M. Lewis, the judgment debtor.

We think that the question of ownership of the money, raised by petitioner when she appeared to answer in the contempt proceedings, was presented too late. We must presume that the judge on the original hearing would not have ordered Mrs. Lewis to pay over the money had she asserted a claim to it at that time. In Freeman on Executions, volume 3, third edition, section 418, it is said :

“Thus, if he denies the debt, or claims the property, or some interest therein, or some right to retain possession thereof, as against the judgment debtor, he has the right to have any issue which he may present relating to his liability tried in the regular, ordinary way, rather than by a.summary proceeding, and to have the protection of a trial by jury.”

• This language of1 the text, however, is subject to the qualification that the disputed right to retain possession is substantial, and asserted in good faith. (Waldron v. Walker, 18 N. Y. Supp. 292.)

The evidence heard on the petitioner’s examination is not before us. We must presume that; she did not lay any claim to the money in her hands, and may assume, to uphold the ruling and order of the judge, that she admitted her bare possession of it, and that it belonged to the judgment debtor. If an issue had been tendered on that question and determined adversely to her, she had a remedy by appeal. (R. & B. Supp. Proc., 3d ed., 458 ; Bronzan v. Drobaz, 93 Cal. 647, 29 Pac. 254; Vanfl. Coll. Att. 590; Gen. Stat. 1901, §5027.)

. Counsel for petitioner say in their brief: “The judge at chambers had no jurisdiction'to try and determine the ownership of the property in controversy ■as against a third party claimant who denied that it belonged to the judgment debtor.” If we should agree with them that there was lack of jurisdiction in such case, how can we determine that there was a denial that the money belonged to the judgment debtor? No relief can be afforded the petitioner on habeas corpus unless the proceedings under which she is restrained are absolutely void. (In re Morris, Petitioner, 39 Kan. 28, 18 Pac. 171, 7 Am. St. Rep. 512; Teats v. Bank, 58 id. 721, 51 Pac. 219.) Gross and flagrant irregularities may be committed without divesting the court of jurisdiction. (Brown, Juris., 2d ed., § 105.)

The question involved is reduced to this: If a ■third party having money or property in his possession belonging to the judgment debtor be cited into •court in proceedings supplemental to execution, and upon examination admit the bare custody of the money or property and its ownership by the judgment debtor, has the court jurisdiction to coerce a ■payment or delivery by such custodian to the judgment creditor? We think the statute is plain on the subject and confers authority on the court so to do. A payment by.Margaret Lewis of the money she was ■ordered to pay to the clerk would be a complete defense to an action by S. M. Lewis, the judgment •debtor, against her to recover the amount. (Bostwick et al. v. Bryant, 113 Ind. 448, 16 N. E. 378.)

The point raised that the petitioner was not summoned in the original proceeding cannot avail her here. (Bank v. Security Co., 65 Kan. 642, 70 Pac. 646.)

Minor points are discussed by counsel for petitioner, but they relate to mere irregularities in the proceedings which did not affect the jurisdiction of the trial court. (The State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924.)

The petitioner will be remanded.

All the Justices concurring.