91 Ark. 252 | Ark. | 1909
(after stating the facts). The judgment against appellant under the above facts was erroneous.
First. It is contended by appellee that, inasmuch as Baker, the assignor, was not made a party to the suit by the assignee, Miller, against the appellee, Vanderberg, and the appellant as garnishee, the judgment rendered against appellant in that sum can not defeat appellee’s recovery in this suit. Section 598 of the Revised Statutes of Missouri provides: “The defendant may demur to the petition when it shall appear upon the face thereof that there is a defect of parties plaintiff or defendant.” Section 602 provides: “When any of the matters in section 598 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall .be deémed to have waived the same, etc. 1 vol. Revised Statutes of Missouri, 1899, PP- 252, 2S3-
Appellee failed to raise the objection of a defect of parties in the manner pointed out by these statutes, and has therefore waived same.
Second. The situs of the debt sued on for the purposes of garnishment was in Missouri as well as Arkansas, as had been held by the Supreme Court of the United States and by this court. Kansas City, Pittsburg & Gulf Ry. Co. v. Parker, 69 Ark. 401, and authorities cited; Stone v. Drake, 79 Ark. 384, and Chicago, R. I. & P. Ry. Co. v. Sturm, 174 U. S. 710, a parallel case where the principles controlling here are fully discussed. Wyeth Hardware & Mfg. Co. v. Lang, 127 Mo. 242.
Counsel for appellant correctly interprets our decisions when he says: “Garnishment is in the nature of a proceeding in rem; service of the process on the garnishee creates a lien in favor of the plaintiff on the money due from the garnishee to the defendant, and upon constructive service the court may ascertain the amount due from the garnishee to the defendant, and subject such money to the satisfaction of the plaintiff’s claim.” Desha v. Baker (1842), 3 Ark. 509; Johnson v. Poster (1901), 69 Ark. 617; Stone v. Drake, supra, and Chicago R. I. & P. Ry. Co. v. Sturm, supra.
Third. The exemption against the debt due Baker and assigned to Miller was a personal privilege which appellee alone could plead and prove. It could not have been set up by the appellant, as garnishee, for the appellee in the suit against appellee and appellant in Missouri.
Exemption can not be pleaded by a garnishee in behalf of a non-resident defendant, and the defendant can only avail himself of his privilege by following the procedure prescribed by the statute. Such is the law here and in Missouri. Dinkins v. CrundenMartin Woodenware Co., 99 Mo. App. 310; Kirby’s Digest, § § 3904-6. See also secs. 3162-3, 3158, Rev. Statutes Mo. and in addition to authorities supra, Baxley v. Laster, 82 Ark. 236; Conley v. Chilcote, 25 Ohio St. 320; Osborne v. Schutt, 67 Mo. 712; Garrett v. Wagner, 125 Mo. 450.
While there is no showing that the judgment against appellant in Missouri had been paid at the time of the trial in this case below, yet under the Revised Statutes of Missouri it was enforceable against appellant, and must be given the full faith and credit of a valid or enforceable judgment of a foreign State (Rev. Stat. U. S., § 905 (2 Ed.), and thus barring appellees of any right to recover here. Secs. 3443, 3452> 4°32> 4039> Revised Statutes of Missouri.
Appellee’s contention is that the judgment is invalid, not that it was unpaid or unenforceable. The judgment is therefore reversed, and the cause is dismissed.