Dunn v. Missouri Pacific Railway Co.

Smith, P. J.

— This was a suit commenced before a justice of the peace of Cass county, by the plaintiff against the defendant, to recover the sum of $56.06 for forty-two days’ work performed for defendant, between the twenty-seventh day of February and the ninth of March, 1889, at $40 per month. The case was removed by appeal to the circuit court, where there was a trial de now. It was admitted at the trial, “that the amount owing plaintiff by defendant for his wages was $54.15, earned in March and April, 1889. The defendant claimed that it was exempt from liability to plaintiff for his wages, on the ground that it had been garnished, and adjudged to pay the sum of $39.75 on an execution issued by a justice of the peace in a certain judgment in favor of J. I). Cooley against the plaintiff, Dunn. The record of the proceedings had before the justice of the peace in said suit, in which judgment was rendered and said execution was issued, and defendant had been garnished, was introduced in evidence. The return of the service of the summons to the garnishee was as follows:

“I hereby certify that I delivered a true copy of the within summons to Ed. A. Gowdy, in his office at station of Pleasant Hill, Missouri Pacific Railway Company, on the eleventh day of April, 1889, in the city of Pleasant Hill, county of Cass, and state of Missouri.

“A. 0. Pkateb,

“Constable.”

The case was submitted to the court without the intervention of a jury. No instructions were asked or given. The court found for the plaintiff. The defendant filed a motion for a new trial, on the ground that the finding of the court was against the law and the *34 evidence, which being overruled there was a judgment lor plaintiff, from which defendant appealed.

I. The single question which is presented by the record for our decision is, whether the return of the service of the summons on the garnishee was sufficient to confer jurisdiction, or, in other words, whether the" order of the justice, on the garnishee, to satisfy the Cooley execution on which the garnishment was founded, was valid. The statute in relation to garnishments, section 2518, provides that, when a fieri facias shall be issued and placed in the hands of an officer for collection, it shall, be the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishee and with like effect as in case of original attachments. The service of garnishment in such case, and the subsequent proceedings against, and in behalf of, the garnishee, shall be the same as in cases of garnishment under an attachment. Pritchard v. Toole, 53 Mo. 356 . The' effect of a garnishment, whether under a writ of attachment or fieri facias, is by statute exactly the same. Whatever may be the rulings in other jurisdictions, it is quite plain that in this state the statute declares that both the effect and the proceedings shall be the same, whether the garnishment is under an execution or writ of attachment It must inevitably follow that the authorities in this state, which decide what is essential to confer jurisdiction in garnishments on attachments, are alike applicable to garnishments under execution.

With these preliminary observations we shall proceed to an examination of the return indorsed by the constable on the summons to the garnishee, in the light of the statute, and the adjudged cases in this state. Attachment proceedings before justices are required to conform with proceedings in the circuit court as near as possible, unless otherwise ordered. R. S. 1879, sec. 481. Under the second and fifth subdivisions of section 420, relating to garnishees, two *35 different steps are required to be taken by the officer in serving the garnishment. In respect to credits of the defendant, he shall declare to the debtor of the defendant that foe attaches in his hands all debts due from him to defendant, or so much thereof as shall be sufficient to satisfy the debt and interest or damages and cost, and summons each debtor as garnishee. The form of summons is outlined in the second subdivision of the same section. One of the steps in this process is a declaration of attachment of the credits of the attachment debtor in the possession or owing to him by the garnishee. The other is in the nature of an ordinary summons to the garnishee to come into court at the next term and make answer to the interrogatories of the plaintiff relating to the credits attached. The proceeding in its nature is a proceeding in rem, the object of which is to effect, as it were, a sequestration of the credits of the attachment debtor, to the end that they may be ultimately applied towards the satisfaction of the plaintiff’s claim, by the order and final judgment of the court. R. S. 1879, secs. 2550, 2551. The notice or declaration of sequestration to the garnishee takes the place of the manual seizure on account of the intangibility of the credits. This constitutes a constructive seizure of the credits. In the absence of this declaration of attachment by the constable serving the writ, there could be no rightful jurisdiction conferred upon the justice to make an order for the payment, which would bind the credits of the debtor in the hands of the garnishee. Fletcher v. Wear, 81 Mo. 524 . The return of the constable in this case fails to show that he made the declaration to the garnishee, required by the statute and essential to bind the debt in its hands. The return was wholly insufficient to bring the res into court so as to authorize a judgment against the garnishee. The declaration of sequestration to the garnishee, which is wholly wanting in this case, is an indispensable prerequisite to confer jurisdiction over the *36 subject-matter. The question of jurisdiction over the res goes to the very power of the court to proceed to adjudicate the rights of the defendant debtor to the credits in the hands of the garnishee. Cannon v. Pope, 18 Mo. App. 86 ; Keene v. Bartholow, 4 Mo. App. 507 ; Brecht v. Corby, 7 Mo. App. 300; Epstein v. Salorgne, 6 Mo. App. 352 ; Newell v. Porter, 62 Mo. 310 .

Again, the return does not show that the garnishment summons was delivered to the “nearest station or freight agent” of the railway company, as required under the proviso to section 2521, Revised Statutes, 1879. For this reason the return was absolutely invalid, and authorizednojudgmentagainstthegarnish.ee, and, therefore, constituting no bar to the payment by the garnishee of the debt to its debtor. Haley v. Railroad, 80 Mo. 112 ; Gates v. Trestren, 89 Mo. 13 . Tested by these principles it is quite obvious that the service of the garnishment summons, as evidenced by the return of the constable thereon indorsed, was wholly insufficient to confer jurisdiction upon the justice to order the garnishee to pay the execution of Cooley. The payment made by the garnishee was not compulsory but was voluntary in its character. It afforded no exemption of the garnishee from its liability to pay the debt it owed the plaintiff.

But it is contended that, if the service of the garnishment summons was insufficient to authorize the justice to order the payment of the Cooley execution, still, as it paid off the judgment debt of the plaintiff Dunn, that in equity it should be subrogated to Cooley’s rights in the execution on which the garnishment was founded. This contention we do not think can be sustained. It is a well-settled rule that a person, advancing money to pay a debt not his own, is not entitled to be subrogated to the rights of the creditor against the debtor, unless the party paying was surety for the debt, or has been compelled to pay it to protect his own rights, or when there was an agreement to that effect with the *37 creditor. Generally speaking the right of subrogation is not applicable to a case where one who is a mere volunteer discharges the debt or obligation for which another is primarily liable in person or estate. Wallace's Appeal, 5 Pa. St. 103 ; Morris v. Oakford, 9 Pa. St. 498 ; Numussey v. Gahn, 3 Paige, 614 ; Sanford v. McCan, 3 C. R. 117. So it has been held that a mortgagee is not entitled to be subrogated to the rights of creditors, where liens upon the property he has discharged by voluntary payment not necessary to protect his own interest in the property. Bayard v. McGraw, 1 Ill. 134 . The payment of the Cooley execution by the defendant was not compulsory ; none of the other conditions essential to justify the application of the doctrine of substitution are shown to have had an existence in the case.

But another insuperable objection to the defendant’s insistence is, that $40 of the amount admitted to be due plaintiff was not the legal subject of garnishment, for the reason that the same was on account of wages due from defendant to plaintiff while in his employ for the last thirty days. R. S. 1879, sec. 2519. Now if this credit of the plaintiff in the hands of defendant was not subject to the garnishment lien, if the garnishment was nil, because interdicted by statute, it is quite difficult to understand how it could be made effectual under the name of subrogation. This would be accomplishing by indirection that which the statute forbids shall be done by direction. It would defeat the beneficent purpose of the statute. It is not believed that the plaintiff can be subrogated out of his wages in the manner contended for in this case. The defendant is in the unfortunate' attitude of having obeyed a void garnishment order, from the harsh effects of which we are powerless to relieve it. We must apply the law as we find it.

The judgment is affirmed.

All concur.