Thompson v. Simpson

127 S.W. 620, 148 Mo. App. 145, 1910 Mo. App. LEXIS 604

Opinion

GOODE, J.

This contest is between two attaching creditors whose writs were levied on the same shares of bank stock owned by the defendant. The first action was instituted by respondent Gaius Paddock on September 23, 1907, before Justice Spaulding in the city of St. Louis. The defendant in said action was designated as Mae Becker, which had been her name until the summer of 1907, and she was known by it in St. Louis where she lived, and under it had made the lease Paddock sued on, his action being for five hundred dollars for the rent of the demised premises which accrued after she had abandoned them and left the state. At the time the action was instituted, and when the judgment was given, October 30, 1907, neither Paddock nor appellant Thompson knew the defendant had married a man named Simpson, as she had in Lake county, Indiana, July 18, 1907. The Paddock writ of attachment was levied by a constable September 24, 1907, “on all shares of stock in the Franklin Bank as the property of said defendant.” The bank reported there were two shares standing in the name of Mae Becker and an undivided interest in half a share standing in the name of Jewel and Mae Becker, the shares being subject to a debt due the bank. No personal service was had on her, but she was notified by publication and on October 30th judgment was rendered for five hundred dollars by default in favor of Paddock and against Mae Becker, to be satisfied out of the attached property. Appellant held a demand against the defendant Mae Becker-Simpson, and appears to have represented some other persons who had claims against her. After judgment had been given for Paddock, a conversation occurred between him and Thompson about the shares, wherein Thompson agreed he would endeavor to induce Mrs. Becker to settle Paddock’s demand for three hundred dollars, which the latter was willing to take by way of compromise. Thompson was not her attorney in the Paddock case but he had' been in previous mat ters, and Ms purpose was to get rid of Paddock’s lien so the shares could be attached by himself and other creditors of Mrs. Becker for their demands. He wrote her about the proposed settlement, she being then in Chicago or Indiana, and on receipt of her reply learned for the first time she had married again and her name was Simpson. The negotiation for a settlement fell through and on November 20, 1907, appellant filed an action of attachment -before Justice Grier of St. Louis against defendant by the name of Mae Simpson. The writ was issued returnable December 4,1907, the Franklin Bank garnished and the writ returned by the constable as having been levied on all the interest of Mae Simpson in two shares of the capital stock of said bank, represented by certificate No. 5109, and one-half share of said stock standing in the name of Mae Becker and Jewel Becker, a minor. Notice by publication was given in said action to Mae Simpson and later, on January 3, 1908, the attachment was sustained and judgment rendered by default against defendant, to be satisfied out of the attached property. After judgments had been obtained as stated against defendant in favor of both appellant and respondent, the former, on January 21, 1908, filed a motion in Justice Grier’s court, recited the institution of the prior action by appellant before Justice Spaulding and the prior levy of the writ issued in said action, recited further respondent claimed the defendant designated as Mae Becker in his action was the same person who was designated as Mae Simpson in appellant’s action, alleged the misstatement of her name in the first action rendered the attachment therein void against the junior action, asked the justice to transfer the case of Thompson versus Mae Simpson to the court of Justice Spaulding that the latter might settle and determine all the controversies which had arisen between the plaintiffs in the two cases in relation to the property, “and the priority, validity, good faith, force and effect of the different attachments,” as provided in section 415 of the Revised. Statutes of 1899. This motion was sustained and the papers and transcript of the cause transmitted to Justice Spaulding February 3, 1908. Later appellant appeared and filed a motion in Justice Spaulding’s court, reciting the facts as we have stated them, and praying said court to dissolve the attachment in the case of Gaius Paddock against Mae •Becker and postpone it to the attachment levied by appellant, on the ground the first attachment was void as against appellant in consequence of the writ having been issued and levied in it under a name other than that of the owner of the property. This motion was heard March 20th and the justice determined he had no jurisdiction. An appeal was taken from the decision of Justice Spaulding to the circuit court where respondent filed a motion to dismiss the appeal. The matter was heard March 19, 1909, at the February term, between appellant and respondent, the defendant Mae Becker-Simpson not appearing. The court overruled the motion of appellant to dissolve and postpone the first attachment, sustained the levy of the attachment in said case as prior to' the levy of appellant, directed all papers in the first case to be returned to Justice Spaulding and ordered said justice to proceed to enforce the levy; adjudged further, that the appeal taken by appellant be dismissed at his cost and the cost of Wm. E. Becker, surety on the appeal bond. An appeal was taken from the judgment of the circuit court to this court.

It is to be borne in mind the motion by appellant before Justice Spaulding to establish the priority of his lien, was filed in his own case against Mae Simpson and the appeal from the justice’s judgment was taken in said case. Really it does not appear that any appeal or proceeding occurred in Justice Spaulding’s court which carried to the circuit court the case of Paddock v. Becker, but the justice transmitted the papers in said case. This partly explains the apparent incongruity in the judgment, which dismissed the appeal taken by-Thompson in his case against Mae Simpson, ordered the costs taxed against him and his surety on the appeal bond and at the same time overruled his motion to dismiss and postpone the attachment in the Paddock case, ordered the papers in said case returned to the justice and directed the justice to proceed to enforce the levy in it. Nevertheless a certain inconsistency remains in the judgment given in the case of Thompson v. Simpson, the one at bar, for though the appeal of the plaintiff from the justice’s decision was dismissed, the plaintiff’s motion for postponement of the Paddock lien was overruled. No theory is suggested on which the appeal could have been dismissed, except lack of jurisdiction in the circuit court, in consequence of Justice Spaulding having acquired no jurisdiction of Thompson v. Simpson by the order of Justice Grier transferring it to him. But if there was a lack of jurisdiction in the first instance in Justice Spaulding, and consequently in the circuit court, the judgment overruling appellant’s motion filed in the cause was improper since it was an exercise of jurisdiction; and probably the judgment entry does not express the true ruling of the court; but of course it must be taken to express it. From any point of view the effect of the judgment is to leave the Paddock lien intact as the first lien and to leave appellant’s lien subject to it. In our opinion, and for reasons to be stated, this was the right result. Taking for granted, for the purposes of the decision, that Justice Spaulding acquired jurisdiction of Thompson v. Simpson, and might-settle the controversies between the two attaching creditors notwithstanding the cases of both had passed already into judgment and Paddock’s judgment had been obtained before Thompson’s action was instituted, we will set forth the reasons why we think appellant was not entitled to be accorded priority to respondent’s lien. The argument for appellant is that as respondent sued defendant by a name she did not bear at the time the action was commenced, and took ont publication against her under said name, no lien was fastened on the bank shares by levying the attachment, and, therefore, appellant acquired the first lien when he levied his writ in November. We think an important fact in dealing with this question is that appellant was not misled to his prejudice by respondent’s having sued defendant as Mae Becker, instead of Mae Simpson;, when appellant levied his writ he knew respondent had sued already and levied on the shares of stock and the amount of his claim. In truth appellant did not think of opposing said attachment, or that he could do so, until after he had ascertained the mistake in the name of defendant, when he seized on the mistake as a means to obtain a lien prior to respondent’s which previously he had recognized and endeavored to get out of the way by a settlement. Therefore it is obvious appellant has no footing more meritorious than a technical one on which to claim priority. Nevertheless priority should be awarded to him if respondent’s attachment is absolutely void and created no lien in consequence of the mistake. As respondent’s action was by constructive service, possibly the decisions of our Supreme Court would sustain the proposition that the judgment was void if it had been given in an action for taxes, or in any other than an attachment action. [Skelton v. Sackett, 91 Mo. 377; Vincent v. Means, 184 Mo. 327, 82 S. W. 96; Gillingham v. Brown, 187 Mo. 181, 85 S. W. 1113.] It long has been declared in this State that in an action of attachment the jurisdiction of the court is obtained by the levy of the writ. In Hardin v. Lee, 51 Mo. 241, the court thus stated the law: “In attachment causes the jurisdiction over any given subject-matter is obtained by the levy thereon of a writ properly issued. And no matter what, nor how great errors or irregularities may subsequently occur, the res remains still in the grasp of the court, and its judgment in regard thereto will be valid and binding, until reversed on error or by appeal, or set aside in a direct and appropriate proceeding for that purpose.” This doctrine has been adhered to until the present time in a series of decisions of which we cite Freeman v. Thompson, 53 Mo. 183; Holland v. Adair, 55 Mo. 40; Williams v. Lobban, 206 Mo. 408, 104 S. W. 58; Randall v. Snyder, 214 Mo. 23, 112 S. W. 529. The Supreme Court in Randall y. Snyder distinguished anew actions by attachment, where property had been levied on, from other classes of actions as regards the effect upon jurisdiction of a defective order of publication. In said case the order of publication involved, and pursuant to which judgment had been given and land sold and purchased, did not describe the land, wherefore it was contended in a collateral action no title had been obtained by the purchaser at the execution sale. It was said that though in a case for delinquent taxes the omission from the order of publication of the description of the land would be fatal, a different rule applied where land had been attached and thereby the court had obtained jurisdiction of it; that is, of the res. In Williams v. Lobban, the like distinction was taken and it was said in an action for taxes against a party, if the service was constructive and designated the party by the initials of his name, the mistake would be fatal, but it was not so where the action was by attachment. Perhaps the most thorough consideration of the question and review of the authorities will be found in the opinion of Judge Sherwood in Freeman v. Thompson, supra. Among other cases examined was Payne v. Moreland, 15 Oh. 435, wherein it appeared a statute required notice of an attachment to be published six weeks or the action to be dismissed; appeared further the notice had not been published and judgment had been rendered without publication and the attached property sold; yet the Supreme Court held the proceeding valid. The case of Cooper v. Reynolds, 10 Wall. 308, was also cited, wherein the Supreme Court of the United States said when property was attached and there was no service on the defendant or appearance by him, the proceeding was essentially one in rem, and the prerequisite of jurisdiction was levy of the writ of attachment, without which levy the court could not proceed, but with it could proceed and subject the property to the demand of the plaintiff. If we concede for argument’s sake only, that if the action by Paddock against Mrs. Becker had not been by attachment, the mistake in her name would have been fatal to the judgment, there being only constructive service, it is clear under the authorities supra this could not be the result, considering the nature of the action. It follows appellant’s motion for priority should not have been sustained on the theory that no lien was acquired by the levy of the Paddock writ but said levy was utterly void.

Appellant argues further that if not void as to every one, the levy was void as against his junior attachment, citing in support of the proposition Lorie v. Abernathy, 63 Mo. App. 249, wherein the plaintiff Abernathy had sued a corporation, the real name of which was the Wing Furniture Company, as the M. A. Wing Furniture & Auction Company. Lorie had afterwards sued in the correct name and his later levy was made the prior lien, the court saying Abernathy’s attachment was not a lien as to third parties because it had been issued against “some other entity” instead of the Wing Furniture Company. If that is true, the levy would seem to have been a nullity as against the true defendant, and the remark of the court which discriminates the case from the one at bar was superfluous, yet the court treated the fact of the second levy having been made believing it was the first as important. The court declared it must hold Lorie was entitled to priority because he “instituted his action and went to expense, in reliance upon the record fact that there was no attachment lien in favor of Abernathy against the Wing Furniture Company.” The decisions given in the cases cited in the opinion in support of its doctrine turned on the fact of the junior lien having been obtained in ignorance of the first levy. [Terry v. Sisson, 125 Mass. 560; Moore v. Graham, 58 Mich. 25.] In the Massachusetts case an attachment action had been brought against Sarah Sisson and a bank garnished as her debtor. There was no account in the bank in the name of Sarah Sisson, but one in the name of Sarah F. Sisson. After the levy the bank disbursed the account to Sarah F. Sisson, the depositor, and was exonerated from liability under the garnishment. The court said in Massachusetts the middle name or initial was an essential part of the name, and therefore Sarah Sisson and Sarah F. Sisson were different names; that the bank had no funds to the credit of the former on its books, and in good faith and with no knowledge or notice that the person intended to be sued was Sarah F. Sisson, had lawfully paid over to her the money which belonged to her. In the Michigan case a man had been garnished as the debtor of John O. Davis, when in fact he owed Jonathan G. Davis. Prior to the judgment the latter had assigned the debt to Graham who was not aware of the garnishment proceeding and paid full value for the claim. On these facts it was held the proceeding could not be amended, as against Graham, to show the true name of the party sued.

This proceeding for priority was taken under a section of the statutes that says where the same property is attached in several actions aghinst the same defendant, the court may settle all controversies which may arise between the plaintiffs in relation to the property and the priority, good faith, force and effect of the different attachments, and may dissolve any attachment, partially or wholly, or postpone it to another, or make such order in the premises as' right and justice may require; further providing that if the actions are in different courts of co-ordinate jurisdiction, such controversies shall be determined by the court out of which the first attachment writ was issued. The statute breathes the spirit of equity, its policy is to promote right and justice, and that policy would be defeated by postponing respondent’s lien to appellant’s, unless respondent’s levy was a nullity, which, as we have seen, wras not so.

The judgment is affirmed.

All concur.