*1 1923. TERM,. Trinidad Co. v. COM-
TRINIDAD MANUFACTURING ASPHALT COMPANY, PANY, STANDARD OIL Appellant, a New Corporation, Respondent. Jersey Opinion January 8, Appeals. St. Louis Court of Filed 1924. Following Acquired by Strictly 1. ATTACHMENTS: Jurisdiction: derogation Statutory being in Mode. Attachment wholly statute, law creation of the common acquire being exclusive, jurisdiction such in to there- statute order under, by designated particular statute must be mode strictly followed. County Property Attached -: Be Found And in -: Must Brought: is Jurisdiction. Suit Otherwise Court Without Where is 1919, is com- Statutes where suit section Revised Under alone, against property of defendant menced attachment jurisdiction proceed, property unless such without the court is county brought. found and within suit attached Property Property County of Suit: 3. -: -: No Found County not Authorized. Other Counties: Writ to Another Under where there is but one de- Revised Statutes section counties, property suit attachment in several fendant with brought in either issued to the counties and writs be attachment; original where suit is commenced aid property against alone and of the defendant property found in the where suit defendant jurisdiction instituted, its send to a court has property. foreign defendant has Over Defendant -: Jurisdiction Person: -: No 4. --: to Issue Summons of Court Jurisdiction Without Garnishments: jurisdiction was obtained over defendant Where no Garnishment. person was found of the defendant and no jurisdiction without within gar- and the summons the writ of issue ' county. nishment, another to the sheriff of directed Non-Resident Defendant: Gar- Jurisdiction: 5. GARNISHMENTS: Answering: Right County to Question Defendant’s in Other nishee Thereby. suit Where Affected Not Jurisdiction a non-resident begun city, found such fact of such and no fit saw to come and sub- in another that a Mfg. Asphalt Co. v. Standard court, mit court ordered and because the money the answer admitted into court question due, deprive right of its did not *2 garnishee. court over May Irregularly 6. Issued: Court ATTACHMENTS: Garnishments: Quash Dismiss Mero Same Ex Motu. Wliere a writ attach- garnishment irregularly issued, ment it and summons of power quash within the dismiss same ex any application mero motu and without for such action defend- any person. ant or other Apparent: 7. --: -: Jurisdiction: Lack of Motion to Quash Proper apparent upon for Procedure Dissolution. it Where face of the record which an attach- irregular defective, they ment was obtained are in that- show affirmatively complied with, statute has not been proper procedure for the dissolution of the attachment mo- quash, irregularities ap- tion to if such defects an are not parent record, remedy by plea on the face of the then the abatement. City Appeal from Circuit Court of St. Louis.— Taylor, Judge. Hon. Wilson A.
Appirmed remanded. appellant.
Anderson, Gilbert &
for
Wolfort
(1)
The court had no
the writ
garnishment.
question
ju-
of attachment and
plea
risdiction can
be raised
in abatement in
Pipe
Daniels
the answer.
v. Yarhola
Line Co., 206 S.
Meyer
v. Ins.
W.
R.
secs. 1232-3233,
(2)
1919; Christian v.
Mo.
Williams,
429.
may
a suit
Attachment
a nonresident
issue
a.ny
in the State.
Bank
Rudert,
(3)
An
450.
attachment suit
be main-
any place
garnishee
tained
where the
could have been
any county
sued;
situs
the debt is in
garnishee
Railway,
could
sued.
Howland
Company Lang,
Railway
Hardware
Triñidad Co. v. Standard appeal directing prosecute an it from order money into raise this court the defendant cannot owing point admits now. On record money pay has been ordered to the defendant and jurisdiction, the defend- into court. If the court had debt; ant could and recover sue garnishee’s but as answer, would not be bound garnishee per- has not this sum due and has admitted payment appeal directing an from the order fected objections overruling does not lie its so. in mouth of the defendant do respond- Nagel Kirby for é Everett Paul Griffin ent.
(1) personal one defendant and Where there is *3 the the of defendant is obtained, service is county a State, in but of suit found one brought one where must be maybe 1178). (R. Carter v. Arbuth- 1919, sec. found County Pike v. 582; 62 Stoneware Co. Mo. Western not, App. Springs 696; Monarch Rub- Mineral 172 Mo. Co., App. (2) 603. The 82 Mo. situs Hutchinson, ber Co. v. if the owner action, chose in thereof a of a debt or in the the residence of of resident State, nonresident, owner is the debt but where the a owner, special purpose for the has a sittts of or chose action cred- resides or the. where the debtor the ease at the debt. In bar, itor sue to recover could County. Wyeth Louis v. the situs of the debt was St. Chicago, Lang, R. I. The & Pac. v. 242; Holland Ry., Pike Coun- 134 Mo. Western Stoneware Co. App. ty Springs The Parker- 172 Mineral Mo. Washington Company been sued have could (R. County Company S. 1919, Standard'Oil St. proper (3) 1180). motion sec. The raising invalidity of of method garnishment, invalidity appearing the face of on Mo, 281; Owens Bradbury, 7 record. Graham Co. v. Standard Oil Co. Hacldey, Johns, Mo. Smith Corpus Pleading, Missouri Juris, Code 438; Pattison’s sec. 846. claiming
BRUERE, C.Plaintiff, to be a creditor brought of this suit, the circuit court city of Louis, St. November of '26,1920; attach ment the defendant who awas nonresident of -this State. grounds alleged
The for the attachment are not a resident’ of this State and that it corporation place whose chief office or business alleges out of affidavit further State. that the corporation of Jersey defendant is a the State of New manner-prescribed and cannot in this State in be sued Chapter Article Revised Statutes of Mis- 1909.' souri, day that the
On the same suit filed süed out two writs attachment—one directed to city Mo., sheriff of the St. Louis, and the other to sheriff Louis, St. Under'the separate writ of attachment issued city of Louis, Foxhall P. St. McCormick was summoned garnishee case. On this writ the sheriff of the city January, day on the 27th made return could be found goods, Louis; chattels or real estate belonging could be found Louis, Mo.', St levy' *4 whereon tó the writ and defendant make the any part costs, thereof; debt that and and order plaintiff attorney and direction of the for he did execute city day Louis, Mo., the writ said on the 26th St. by declaring writing November, 1920, to Foxhall P. that he in his McCormick attached hands all debts owing goods, due from him to the and defendant and all moneys, rights, effects, credits, chattels, choses action and evidence of debt of said defendant and that he did writing summons the Foxhall P. said McCormick as appear city court for circuit the before TERM, Co. v. to answer term of writ Louis the return said at St. propound- might interrogatories and be exhibited such as plaintiff. ed him issued writ Under attachment, Parker-Washington county of St. Louis, were corporation,
Company, McCormick Foxhall P. and gar- and summoned Louis St. served at- Louis of St. the sheriff of nishees; and owing them to all due debts goods, tached in their hands rights, moneys, effects, all defendant, and debt evidence of in action and choses chattels, credits, said defendant. garnishment Feb- to the were All writs returnable plaintiff February ruary 8, 1921, 1921. On Term, garnish- day interrogatories. same On the
filed its where- P. McCormick, Foxhall ment by gar- was summoned as P. McCormick said Foxhall city Louis, the sheriff of the of St. nishee in this cause Louis, sheriff of St. and also Mo., plaintiff’s by the at both dismissed Mo., were costs. Parker-Washington February Com- 14, 1921,
On pany, garnishee, its motion to on filed ground property defendant of said that no personal had on the defendant in service was not city under the statutes that, therefore, of St. jurisdic- city of St. Louis had no the circuit court of the tion. Parker-Washing- April 30, 1921,
Thereafter, Company, garnishee, an ton also filed answer under subject quash, to the motion to that test and effect no valid was obtained the cause over personal service defendant; or the had on the juris- having Louis;
was attached person defend- diction over either the in the circuit court of existed ant, no issue writ aid to the sheriff of St. Louis county; said writ of issued to *5 Asphalt Mfg. Oil Co. Trinidad v. Standard Co. garnishment county, writ of and said of St. Louis gar- that the void; unlawful and thereof were and service required inter- make answer be nishee shouldmot discharged plaintiff with rogatories should filed subject alleged that, further its costs. The answer foregoing, garnishee, service of the time at posses- garnishment, in its and had owed sufficient moneys, belonging defendant, sion plaintiff’s satisfy claim. amount to August mo- filed its 26,1921, on Thereafter, garnishee tion for order on the sum.admitted into court or to the sheriff of the defendant to be due city of garnishee to the motion '5, 1921,
On December quash the writ was overruled on December 16, pay an order on said into entered days, twenty-seven hun- within ten court, sum fifty-one twenty-eight dred dollars cents admitted garnishee’s pay- making in said answer, said discharged. ment said to stand December 12, 1921, On Standard Oil Company Jersey, of New in the filed garnishment ceedings, and in said also its proceedings, special entry appearance quash and motion writ garnishment, and the summons or issued therein and directed to the sheriff of St. county, Mo., for the reason that the circuit court on the face of the record did not have premises. ruling
No was made defendant’s in . motion garnishment proceeding, April but on court sustained motion to the said writ defendant’s garnish- attachment and the said summons writ of quashed ment and the writ of attachment and garnishment. plaintiff, due filed a motion time, to set aside judgment, sustaining quash. said order and the motion to plain- This motion was overruled the court, and the thereupon appeal. took tiff TERM, 1923. v. Standard *6 appears tbe affirmatively that it will be It noted obtained .personal was service face of tbe record no no Company, (cid:127) and on the St. city of in the property was found of defendant Louis. derogation being in
Attachment wholly law, the statute creation of law common and only jurisdiction general thereof but have no the courts given stat- special jurisdiction as is limited such and acquire to in order exclusive, a statute is and ute. Such designated particular jurisdiction mode thereunder strictly followed. statute must be pro- By 1919, Revised Stathtes 1178, section ‘‘ against attachment vided commenced that Suits brought person property in the a . . . shall be ’ property may county found.5 in which he such by at- this where suit is commenced statute, Under property against alone, tachment the defendant prop- proceed, jurisdiction such court is without erty unless county within found attached brought. suit is
By it is section Revised Statutes reside there are several defendants who vided: “When single property in have different when counties, property any action has such or effects every such may different writs issue counties, ’’ county. Under statute where there-is but one defendant property with in several suit counties, brought and'writs either, issued original counties aid of attachment; property suit is commenced alone, the defendant and no of the defendant found where suit the court instituted, jurisdiction foreign has no send its writ Separate property. where the defendant has. writs lawfully another can be aid issued writ, another in a issued cause which has lawfully attached.
122 Co. v. Standard inasmuch bar,
In the case at person obtained over the within the found and the defendant was juris without the court it follows that summons the writ of diction issue garnishment, directed Hutchinson, Rubber Mo. county, [Monarch Mo. Leahy Barnett, State rel. App. ; 603 ex Stoneware Co. 180 S. W. Western W. Carter App. 696, 155 Springs Co., Hinman v. et Rushmore, al., Arbuthnot, Ill. 509.] con- appellant here, however, for plaintiff-,
Counsel *7 and in fit to come garnishee tend that because the saw of the and because the jurisdiction court, submit money court ordered the into court the cannot admitted the answer due, to be the defendant question jurisdiction over the garnishee. tenable. position is not garnishee,
This at eyes law, of the is mere custodian of the property admit tached his hands. He his own right, away powerless he is do which will effect anything the res rights of the instant case persons. third In possession subjected not lawfully writ power but was under a court, unlawfully can claim issued, nothing done under it . validity. No act of garnishee, court, or order of the coul'd the defendant if deprive right to insist that his is to be taken him it against from his will prescribed shall strictly be done statute. mode proceedings under the writ Any summons or writ of garnishment, directed sheriff judice are coram non of St. Louis county, void. Mo., 827; Tusten, 21, 14 S. W. Connor [Gates Pope, App. Epstein Salorgne, Mo. App. v. Hannibal & St. Haley Joseph Co., 80 Mo. Ry. 112; Dunn Ry. Mo. Pac. l. c. on Attach Drake (7 ment Ed.), secs. 452a, 89a.]
OCTOBER,TERM, 1923. Co. v. jurisdic- plaintiff that contend further Counsel for city Louis, of St. tion court existed the circuit express provision Revised of section Mo., under corporations 1919, which allows suits Statutes ac- brought in cause of action be action arose and that since the crued; attachment issued to Louis, Mo., the lawfully is- Mo., of St. (hereto- sued Revised Statutes under section to.) fore referred say that it will sufficeto
In answer to this contention petition disclose that case not state or does nor Louis; cause did of action accrue anything the con- which base there in the record jurisdiction under tention provision the trial court had Revised Statutes section 1180, had next contend that the Counsel for 'gar- quash county, of St. Louis Mo. It nishment issued to the sheriff urged question can by plea raised in abatement. well cannot subscribe to this It is
We contention. irregularly an been settled “where attachment has power the court to dis- issued miss the same is within the any application and without ex mero motu person.” any for such action [4 *8 Cyc. p. of Law & 781 Procedure, D:] law,
It is also a rule of that well-established apparent the face of record that ceedings upon ir- is obtained are which the attachment affirmatively regular they in that show and defective, proper complied with, not been the statute has procedure for mo- the dissolution the attachment is irregularities quash. are if tion But defects remedy apparent on the face of record, juris- plea In instant in abatement. case the want garnishment, diction to issue the writ of attachment and ap- county, Mo., directed the sheriff of Louis' parent ques- on the face of the record and, therefore, 214 H. R. R. Co.
Stoeckle v. St. &L. motion tion raised properly was Owens v. quasb. 281; 7 Mo. Bradbury, [Graham Hackley, Heddins & Co. v. Johns, 59 Mo. 89; Smith, sec. sec. 614; Juris, p. 438, 1021, p. 439, Corpus Bud sec. Pleading, Missouri Code Patterson, Newcomb decke v. App. 8, S. W. Garrels, v. New York H. R. R. 81 W. Cent. & It affirmed judgment should follows 1069.] recom the cause remanded. The Commissioner so mends.
PER opinion CURIAM:—The Brubre, C., as adopted the court. opinion of judgment of circuit court of the of St. Louis is af- accordingly firmed and the cause remanded.
CARL E. STOECKLE, & v. ST. Respondent, LOUIS
HANNIBAL Corpora- RAILROAD COMPANY, tion, Appellant. Appeals. Opinion January 8,
St. Louis Court of Filed Driving 1. NEGLIGENCE: Railroads: Automobiles: Collision: Wife Agent Husband’s Automobile: Evidence: Wife Not of Husband. damages company In an action for a railroad for the alleged value of an. automobile of which was the owner which was demolished in with a collision one of defendant’s freight being by plaintiff’s wife, trains while driven evidence . trip making solely held to show she was made for pleasure caprice agent her and not of her husband. -:2. -: -: -: -: Master and Servant: Re- Permitting lation Not Created Husband Wife to Drive Auto- plaintiff’s mobile for her Where automobile while Pleasure. being driven his wife was demolished in a collision with a freight train and evidence fails demonstrate that the wife plaintiff’s business, the was about status of master and servant not shown.