Missouri Pacific Railway Co. v. Sharitt

43 Kan. 375

Opinions

Opinion by

Clogston, C.:

It is not contended that the claim sued on is not exempt under the exemption laws of this state, but it is contended that because the garnishment proceedings were commenced in Missouri, and the court of that state obtained jurisdiction of the subject-matter before this suit was brought in Kansas, for that reason the defendant company became liable under its answer in Missouri under said proceedings, and should not again be held liable in this state in this action. The plaintiff in error recognizes the rule laid down by this court, that if the garnishment proceedings had been commenced in this state, no question could have been raised; and also recognizes the rule adopted in this state that the garnishee has the same right in his answer to raise all the questions that the debtor himself might raise, and plead the exemption law as completely as the debtor might plead it. But plaintiff in error says no such rule exists in Missouri; that under the decisions of that state it is precluded from asserting this right, and therefore if it is compelled to pay this judgment, it will again have to pay the claim under its answer in Missouri. This seems to present a hardship; but as the claim is exempt under the laws of this state, and presumably exempt under the laws of Missouri — for it is presumed, in the absence of any showing to the contrary, that the laws of Missouri are the same as the statutes of this state —therefore, if this claim is exempt under both the laws of Missouri and of Kansas, it would be unjust to the defendant in error if by reason of some construction of the statute of Missouri he should be prevented from securing the benefit of the exemption. It has been held in this state that the garnishee may plead the exemption laws and be protected thereby as completely as-the debtor would be. (Mull v. Jones, 33 Kas. 112.) This seems to be the well-recognized doctrine elsewhere; and, while there is some conflict in the authorities on this subject, the great weight of authority is with our court.

We see no reason why an exception should be made in this case, to a rule so well established. Under the rule laid down in Mo. Pac. Rly. Co. v. Maltby, 34 Kas. 131, and K. C. & J. C. Rld. Co. v. Gough, 35 id. 1, this judgment must be affirmed. (See also, Drake v. L. S. & M. S. Rly. Co., 69 Mich. 168; 37 N. W. Rep. 70.) Under those decisions, this claim would be exempt to the plaintiff below had he resided either in the state of Missouri, or, as he does, in Kansas, and such exemption ought to be a good defense for the defendant company in Missouri.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

Horton, C. J., and Johnston, J., concurring.