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Levis-Zukoski Mercantile Co. v. Exchange National Bank

The Levis-Zukoski Mercantile Company v. The Exchange National Bank of El Dorado, as Garnishee

Levis-Zukoski Mercantile Co. v. Exch. Nat'l Bank, 66 P. 638 (Kan. 1901)
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Court
Supreme Court of Kansas · State Highest Courts
Decided
November 9, 1901
Docket
No. 12,234
Judges
Ellis, Gkeene, Johnston, Smith
Citations
66 P. 63863 Kan. 5501901 Kan. LEXIS 184
Disposition
Affirmed.
Syllabus
SYLLABUS BY THE OOUBT. Garnishment — Action against Garnishee. In an action against a garnishee, under section 4644 of the General Statutes of 1901, the court did not err in sustaining a demurrer to the evidence filed by the latter, in the absence of proof that the plaintiff had obtained judgment against its debtor in the principal action.
Summary
Error from Butler district court; C. W. Shinn, judge.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Smith

Text extracted by OCR from a scanned original; check the original for exact wording.

The opinion of the court was delivered by Smith, J.:

The plaintiffs in error sought to charge a bank, as garnishee, by action against it under the provisions of sections 4644 of the General Statutes of 1901, before it had obtained a judgment against the *551 principal debtor. The section referred to contains the following:

“No trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs.”

After plaintiff in error had introduced its evidence in the proceeding against the garnishee, the court sustained a demurer thereto filed by the bank. There was no error in this. It devolves upon a party seeking to recover a judgment against a garnishee to show that his demand against his debtor has passed into judgment and is no longer open to dispute; otherwise, after a protracted trial to ascertain the liability of the garnishee, the plaintiff might fail in his action against the principal debtor, thus wasting the time of the court in an immaterial inquiry. The statute is plain upon the subject and its requirements are based upon sound reason. (Laidlaw v. Morrow, 44 Mich. 547 , 7 N. W. 191 ; Sun Mutual Ins. Co. v. Seeligson & Co., 59 Tex. 3 ; Washburn v. N. Y. & Vt. M. Co. and Trustee, 41 Vt. 50 ; Lowry et al. v. Clements, 9 Ala. 422 .) In the first case cited the decision is based upon a statute. In the others a general principle of law is declared.

The judgment of the court below will be affirmed.

Johnston, Gkeene, Ellis, JJ., concurring.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1905: 11923: 119052026peak 1905 · 1

Relies on it most ⓘ

  1. Egnatik v. Riverview State Bank216 P. 1100 (Kan. 1923)
  2. Cooley v. Janes80 P. 596 (Kan. 1905)

Most recent

  1. Egnatik v. Riverview State Bank216 P. 1100 (Kan. 1923)
  2. Cooley v. Janes80 P. 596 (Kan. 1905)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Laidlaw v. Morrow, 7 N.W. 191 (Mich. 1880) 8
Sun Mut. Ins. v. Geo. Seeligson & Co., 59 Tex. 3 (1883) 32
Washburn v. N.Y. & Vt. Mining Co., 41 Vt. 50 (1868) 9
Lowry v. Clements, 9 Ala. 422 (1846) 7

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