7 Kan. App. 47 | Kan. Ct. App. | 1898
'The opinion of the court was delivered by
This action was commenced by John S. Cunningham, in the court of common pleas of Wyandotte county, against the Kansas City, Fort Scott & Memphis Railway Company. The plaintiff alleged the corporate existence of the railway company, and averred that, on December 27, 1892, in an action pending before a justice of the peace of Wyandotte county, wherein John S. Cunningham was plaintiff and Arthur E. Keeley was defendant, the plaintiff recovered a judgment against the defendant for $41.63, and costs; that the justice had jurisdiction of the subject-matter and the partiesthat the judgment was in full force and had not been modified or set aside; that in that action a garnishment had been issued and served on the Kansas City, Fort Scott & Memphis Railway Company ; that the railway company had answered that it owed Keeley $110 ; that the defendant, Keeley, had entered his appearance in the case, and filed a motion to discharge the money, which motion had been overruled; that afterwards, on February 2, 1893, the justice of the peace made an order that the railway company pay a sum sufficient
The defendant, besides a general denial, answered that the judgment was rendered without the justice having had jurisdiction of either the person of Keeley or the debt sought to be impounded, and was void; that the debt due Keeley accrued for services performed under a contract of employment made in Missouri, and was payable in that state; that the situs of the debt was in that state, and it wasc_ not subject to garnishment or attachment in Kansas; that the debt was for services rendered during the thirty days immediately preceding the service of garnishment; that Keeley had been, for some years last past, a resident of Missouri, and was the head of a family dependent upon his labor for support; that, by the laws of Missouri, the wages were exempt; that the plaintiff was a resident of Illinois, and that the action was instituted in the state of Kansas for the sole purpose of evading the exemption laws of the state of Missouri, and to deprive Keeley and his family of the benefit of his exemption. For reply, the plaintiff filed a general denial. The parties waived a jury, and a trial before the court resulted in findings upon which judgment for $103, with interest and. ■costs, was rendered against the defendant. A motion for a new trial was overruled, and upon exceptions taken the case is presented to this court for review.
Complaint is made that, in both the Katz and Cunningham cases, the notice of the garnishment in
Complaint is made that the court of common pleas had no original jurisdiction of the present action, it being founded on non-compliance with an order of a justice of the peace. It is contended that an action for the violation of an order to pay money into a justice’s court must be brought in such court; that the code confers upon the justice whose order has been violated exclusive original jurisdiction of an action for damages sustained thereby.' There is no merit in this contention. The court of common pleas of Wyandotte county was created and established by chapter 92 of the Laws of 1891, which confers the same jurisdiction as that possessed by the district court, except in divorce cases. The district courts have jurisdiction to try and determine all actions for the recovery of money. Paragraph 4889, General Statutes of 1889 (Gen. Stat. 1897, ch. 103, § 73), was not intended to fix or limit the jurisdiction of the court, but to declare the effect of the garnishment proceedings before a justice of the peace. The statute enacted for the purpose of fixing the justice’s jurisdiction does not undertake to give justices of the peace any special or exclusive juris
The next contention is that the court erred in overruling defendant’s objection to the introduction of any evidence under the second count of plaintiff’s petition. It is claimed that the cause of action set up in the second count cannot be enforced in the name of any other person than the plaintiff in the garnishee proceedings ; that such a cause of action is not assignable ; that, under paragraph'4889, General Statutes of 1889, the plaintiff must, if any action is taken, proceed in his own name against the debtor garnished ; and that Katz had no right or authority to sell and assign his cause of action to Cunningham. At common law, no chose in action was assignable. In equity, every chose in action except a tort was assignable. Under our statute, every chose in action except a tort is assignable, the same as it was in equity. The claim of Katz against the railway company was a chose in action, and was therefore assignable. The statute ( ¶ 4889) says the plaintiff may proceed against the garnishee, in an action in his own name, as in other cases. This does not mean that he cannot assign it to another. That right is given by another statute, and by statute Katz’s assignee must prosecute his action in his own name. Every action must be prosecuted in the name of the real party in interest. The section under consideration must be construed in the light of all other provisions of the statutes; and, when so construed, it simply means that such cause of action may be prosecuted in the
The plaintiff in error contends that the situs of the
This leaves for our determination two questions: (1) Will this court protect the defendant, Keeley, in his right of exemption under the statutes of Missouri?
Our conclusion is, that the court of common pleas should have held that the fund in the hands of the plaintiff in error was exempt to the defendant in the principal cases ; that this right of exemption had not been concluded by the orders of the justice, and that it constituted a good defense to the action of Cunningham for the fund in the hands of the plaintiff in érror. The trial court, therefore', erred in its conclusions of law, and for that reason should have sustained the motion for a new trial.
The judgment of the court is reversed, with direction that the trial court sustain the motion for a new trial, and for further proceedings not inconsistent with the opinion herein expressed.