134 P.2d 625 | Kan. | 1943
The opinion of the court was delivered by
This is an appeal from an order discharging a garnishment of funds in the hands of a county treasurer.
In view of the conclusion presently to be stated a very brief recital of the facts will suffice. On July 15, 1937, Stephens College, appellant here, obtained a money judgment against Mrs. J. E. Long. Administration was then being had of the estate of her mother, Mrs. Hall. Partial distribution had been made, Mrs. Long being one of
Appellant seeks to raise the questions of whether Mrs. Long in fact renounced hér legacy, whether under the circumstances shown she could renounce or disclaim it as against the interest of her judgment creditor. Important as are these and other questions raised by appellant, it becomes clear upon examination of the record that we cannot here consider them.
In the first place, appellees challenge appellant’s right to be heard because of failure to file a complete transcript with the clerk of the district court. (G. S. 1935, 60-3311; Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929 and cases there cited.) It is conceded that the complete transcript was filed late—after appellees’ brief was prepared. Appellant relates facts in extenuation of the delay in filing which need not be recited here but which are quite persuasive, and without intention of ignoring the important rule we pass to a more fundamental reason why the appeal must be dismissed.
The county treasurer, garnishee, was not made a party to the appeal. Under our garnishment statutes (G. S. 1935, 60-940 to 60-
There is still another reason—not suggested by the trial court nor urged by appellees—which would appear to support the order discharging the garnishment. It is provided in the garnishment statute (G. S. 1935, 60-955): “No judgment shall be rendered upon a liability of the garnishee arising either . . . Third. By reason of any money in his hands as a public officer, and for which he is accountable to the defendant merely as such officer.” (See H. & M. Tire Service Co. v. Combs, 140 Kan. 35, 37, 34 P. 2d 943.)
For reasons stated the appeal must be dismissed. It is so ordered.