Grissum v. Soldi

108 S.W.3d 805 (2003) Harold W. GRISSUM, Plaintiff-Respondent, v. Joyce C. (Grissum) SOLDI, Defendant-Appellant. No. 25327. Missouri Court of Appeals, Southern District. June 30, 2003. *806 Raymond I. Plaster, Springfield, for Appellant. Mark C. Fels and Gregory J. Smith, Smith & Fels, P.C., Springfield, for Respondent. KENNETH W. SHRUM, Judge. In this garnishment case, Harold W. Grissum ("Husband") attempted to collect a money judgment against his ex-wife, *807 Joyce C. Soldi ("Wife").[1] He did so by trying to attach a debt owed by Quixtar, Inc. ("Quixtar") to Wife.[2] Wife appeals from a judgment that ordered the Greene County circuit clerk to pay Husband funds deposited by Quixtar in the court's registry. Wife charges, inter alia, that the trial court did not have jurisdiction over the debt owed by Quixtar to Wife; consequently, she claims all its rulings are void. Because we find merit in this contention, we are compelled to dismiss the appeal. The marriage between Husband and Wife was dissolved January 3, 1990, per a decree entered by the Greene County, Missouri, circuit court. The decree incorporated a "Property Settlement and Separation Agreement" signed by the parties. In part, the decree, via reference to the property agreement, awarded Wife an "Amway Distributorship" and ordered her to pay Husband "$3,000 per month starting on January 31st, 1990, and continuing on or before the last day of each month thereafter until the death of [H]usband." On September 4, 2001, the Greene County circuit clerk, acting at Husband's request, issued a writ of execution and sent it to the office of the Oakland County sheriff in Michigan. The execution/garnishment form directed the Michigan sheriff to "[g]arnish any sums due [Wife] from Garnishee Quixtar, Inc."[3] This execution/garnishment was returnable in ninety days, i.e., December 3, 2001. Husband caused another execution to issue on November 30, 2001, and it was sent to the sheriff in Michigan on that date. The return date for this execution/garnishment form was February 28, 2002. As before, the Michigan sheriff was directed to garnish any sums due Wife from Quixtar.[4] For both garnishment filings, Quixtar answered interrogatories propounded by Husband. Moreover, in response to each garnishment, Quixtar deposited a sum of money with the Greene County circuit clerk. Wife filed motions to quash each garnishment. By docket entries dated March 12, March 18, and April 4 of 2002, the court denied these motions and ordered the circuit clerk to disburse to Husband all funds "currently being held." Wife attempted to appeal those rulings, but this court dismissed the appeal on October 31, 2002, due to non-compliance with Rule 74.01(a). Grissum v. Soldi, 87 S.W.3d 915 (Mo.App.2002) (Grissum I). While the appeal in Grissum I was pending, Husband apparently realized the Greene County circuit court file did not contain a return of service by the sheriff of Oakland County, Michigan, for either writ of garnishment.[5] Accordingly, he moved *808 to file those returns out of time. On August 1, 2002, the trial judge granted Husband leave to make those filings.[6] An examination of the documents reveals that the "summons" and "writ of garnishment" portion of each writ was left blank as shown in Appendix "A." On November 13, 2002, a judgment was entered which overruled Wife's motions to quash and ordered the clerk to disburse to Husband any funds that had been received by the clerk. This appeal followed. Wife argues, inter alia, that the trial court lacked jurisdiction over the res, i.e., over the debt owed by Quixtar to Wife. Based on that premise, Wife insists the judgment is void.[7] We agree for the reasons set forth below. "Garnishment is purely a creature of statute in derogation of the common law." State ex rel. Eagle Bank and Trust Co. by Roderman v. Corcoran, 659 S.W.2d 775, 777[1] (Mo.banc 1983). As such, "[s]trict compliance with all of the requirements formerly imposed by statutes and now also enjoined by civil rules is essential to confer and support jurisdiction in a garnishment proceeding." Id. at 777[2]. Failure to proceed as required by statutes and rules constitutes abandonment or discontinuance of a garnishment case. Id. at 777[5]. When the garnishment statutes and rules are not followed, a trial court is left without jurisdiction to proceed.[8]Id.; see also State ex rel. Bagnell Inv. Co. v. Luten, 647 S.W.2d 539, 541 (Mo.banc 1983). The garnishment statutes and rules can be found in chapter 525 and Rule 90.[9]U.S. v. Brooks, 40 S.W.3d 411, 415 (Mo.App.2001). Garnishment is an incidental remedy by which a judgment creditor may collect the judgment by reaching the judgment debtor's property in the hands of a third party. Id. at 415[4]. Stated otherwise, garnishment is a proceeding in rem that brings within the jurisdiction and power of the trial court a debt or chose of action, i.e., a "res," and impresses that res with the lien of the judgment in aid of execution. Antonacci v. Antonacci, 892 S.W.2d 365, 367[2] (Mo. App.1995). Rule 90.03 mandates that "[t]he garnishee... be served with summons and the writ of garnishment[,]" with service thereof to be as stated in Rule 54.13.[10] Rule 90.04 provides that "[t]he service of the writ of garnishment and summons attaches the property subject to garnishment in the *809 garnishee's possession ... at the time the writ of garnishment and summons is served...." In a similar vein, section 525.040 provides that "[n]otice of garnishment, served as provided in sections 525.010 to 525.480 shall have the effect of attaching all personal property, money ... or other choses in action of the defendant in the garnishee's possession ... at the time of the service of the garnishment...." Here, an essential part of the documents sent to Michigan were never filled out or signed by the Michigan sheriff, either before or after service thereof. Specifically, the section that read, "[y]ou are notified that I attach all ... debts owed to the above named debtor that are in your possession[,]" was left blank on both documents. This uncompleted part of each form comprised the "writ of attachment and summons" mentioned in Rule 90.04, or the "notice of garnishment" described in section 525.040. The sheriff's failure on these two occasions to complete and serve on Quixtar a "writ of garnishment and summons" or a "notice of garnishment" resulted in the debt (owed by Quixtar to Wife) never being seized by him. This follows because Rule 90.04 and section 525.040 unequivocally provide that it is service of those documents that attaches the subject property, i.e., jurisdiction over the res, and nothing else suffices. See Feltner v. U.S. Army Fin. and Accounting Center, 643 S.W.2d 648, 649[4] (Mo.App. 1982); Meyer v. Meyer, 571 S.W.2d 477, 480[6] (Mo.App.1978); Fulkerson v. Laird, 421 S.W.2d 523, 525 (Mo.App.1967); C. Rallo Contracting Co. v. Blong, 313 S.W.2d 734, 737[1] (Mo.App.1958). In sum, the debt at issue, having never been attached, was not brought before the Missouri court by these attempted garnishments. Based on the plain language of Rule 90.04 and section 525.040, and cases that interpret Missouri's garnishment law, we conclude that neither service of the remainder of the form issued out of the clerk's office, nor a declaration by the Michigan sheriff that he levied a writ of garnishment, constituted a seizure of the debt owed by Quixtar to Wife. See Eagle Bank and Trust, 659 S.W.2d at 777-78. The trial court simply did not acquire jurisdiction over the res based on what the Michigan sheriff served on Quixtar. In holding that the above deficiencies deprived the trial court of jurisdiction, we have not ignored Husband's argument that the deposit of the money in the Missouri court conferred jurisdiction over the res.[11] We reject such argument, however, for the following reasons. A garnishee is a mere stakeholder in the proceedings, and his or her voluntary acts cannot "do away with those steps which the law prescribes as necessary in order that the property may be held as against the owner." Epstein v. Salorgne, 6 Mo.App. 352, 354 (1878). "`Whatever a garnishee may do respecting his own rights, he is powerless to do anything which will affect the rights of third persons, and if he is not legally served nothing is attached in his hands.'" Federal Truck Co. v. Mayer, 270 S.W. 407, 409 (Mo.App.1925) (quoting Gates v. Tusten, 89 Mo. 13, 14 S.W. 827, 829 (1886)). This principle underlies the universal rule that attends in garnishment cases, namely a "court's jurisdiction over the res cannot be waived or conferred by consent." Beatty *810 v. Conner, 923 S.W.2d 455, 459[7] (Mo.App. 1996); see also Feltner, 643 S.W.2d at 649[3]; Blanton, 680 S.W.2d at 208[5]; Fulkerson, 421 S.W.2d at 526[2]; C. Rallo Contracting, 313 S.W.2d at 737[2]. "[M]ere jurisdiction over the person of the garnishee does not carry with it jurisdiction over the res." Feltner, 643 S.W.2d at 649[5]. Husband contends that the above principle, i.e., jurisdiction over the subject matter cannot be waived or conferred, has no application here because the money was paid into the court registry by the garnishee.[12] He further claims that no Missouri cases can be found wherein money was paid into the court via a garnishee, and an appellate court found a lack of jurisdiction over the res. Such argument, however, ignores the Feltner and C. Rallo Contracting cases. As occurred here, the garnishees in Feltner and C. Rallo Contracting answered interrogatories and paid what they claimed was due to the respective debtors into the registry of the court from which the garnishment issued. In each instance, an appellate court held that the respective courts did not acquire jurisdiction over the res. Feltner, 643 S.W.2d at 649[6]; C. Rallo Contracting, 313 S.W.2d at 736-39. Based on the foregoing authorities, we are persuaded the trial court never acquired jurisdiction over the res (the debt owed by Quixtar to Wife), even through Quixtar deposited money with the trial court.[13] In a garnishment case, a judgment of a court without jurisdiction over the res is void. Fulkerson, 421 S.W.2d at 526[4]. Appeal of a void judgment in a garnishment case vests no jurisdiction in the appellate court. Blanton, 680 S.W.2d at 208[7]. This court has no jurisdiction because the judgment of the circuit court is void. Accordingly, the appeal must be dismissed.[14] Appeal dismissed. *811 PREWITT, P.J., CONCURS IN SEPARATE OPINION. PARRISH, J., CONCURS AND CONCURS IN SEPARATE OPINION. EXHIBIT "A" *812 CONCURRING OPINION JAMES K. PREWITT, Presiding Judge. I concur in the opinion. I write only to state that I do not believe that the Circuit Court of Greene County had authority to direct the Michigan sheriff to take the action requested. NOTES [1] In an attempt at clarity, we refer to garnishor Harold Grissum as "Husband" and Joyce Soldi as "Wife," even though their marriage was dissolved January 3, 1990. [2] As will be discussed infra, Husband and Wife owned an Amway distributorship at the time of dissolution, and it was awarded to Wife. In some unexplained way, Quixtar apparently became a successor of Amway Corporation. [3] It appears that Quixtar's principal place of business and state of incorporation is Michigan. As to Wife's residence, the record reflects that by January 1998 she was living in San Diego, California, and that she later relocated, establishing her domicile in the State of Florida. [4] Husband's first application for execution/garnishment recited that Wife owed him $94,131.85 based upon her failure to pay the $3000 per month contained in the dissolution judgment. The second application alleged Wife owed him $86,470.96. [5] See Board of Regents v. Harriman, 792 S.W.2d 388, 394 (Mo.App.1990) (holding, to confer jurisdiction over the res in a garnishment proceeding, there must be a sheriff's return that affirmatively shows substantial compliance with essential requirements prescribed by statutes and rules relating to garnishment in aid of execution). [6] A copy of the document returnable December 3, 2001, is attached as Appendix "A" to this opinion. Except for relevant dates and alleged debt amount, the execution/garnishment document returnable February 28, 2002, is identical to that shown in Appendix "A." [7] We note that Wife based her lack of jurisdiction argument upon reasons other than those given in this opinion. In all cases, an appellate court has a duty to examine jurisdictional questions without regard to whether the parties raised the issue. Roberts v. Colonial Meadows, LLC, 97 S.W.3d 529, 530 (Mo.App. 2003); Cook v. Cook, 97 S.W.3d 482, 485 (Mo.App.2002). [8] Eagle Bank and Trust held that the trial court lacked jurisdiction to proceed where the plaintiff did not timely obtain an "Immediate Order of Delivery" and failed to serve authorized interrogatories in a timely fashion. Id. at 777-78. [9] All statutory references herein are to RSMo (2000), unless otherwise indicated. All rule references herein are to Supreme Court Rules (2002), unless stated differently. [10] Rule 54.13 deals exclusively with service of process within the state of Missouri. [11] As for personal jurisdiction over the corporate entity, this can be waived; consequently, Quixtar did so when answering interrogatories propounded to it. See Blanton v. U.S. Fidelity and Guar. Co., 680 S.W.2d 206, 208[5] (Mo.App.1984); Feltner, 643 S.W.2d at 649[6]; Meyer, 571 S.W.2d at 480[6]; C. Rallo Contracting, 313 S.W.2d at 737[2]. [12] We fail to see the distinction Husband attempts to make. If a garnishee could pay money into court and this fact alone gave the court jurisdiction over the res, then one could indeed waive or confer subject matter jurisdiction. This is not the garnishment law of Missouri. [13] Husband cites two cases he claims contradict our holding. In Wry v. Wade, 814 S.W.2d 655 (Mo.App.1991), the funds were paid into a Missouri court pursuant to a "Release of all Claims" signed by the debtors. 814 S.W.2d at 658. More than that, the opinion is wholly unclear whether garnishment proceedings were instituted in aid of collecting delinquent child support payments. Id. at 658-59. Also distinguishing the case is the fact that the foreign corporation had a "registered agent for service in Missouri." Id. In Strande v. Mershon, 814 S.W.2d 704 (Mo.App.1991), the foreign corporation was served personally by delivery of the summons and notice, in proper form, to its registered agent in Missouri. 814 S.W.2d at 705. These are not the facts of this case. [14] Since the Michigan sheriff's failure to attach the debt is dispositive, we need not decide if other failures to strictly comply with the garnishment rules and statutes deprived the trial court of subject matter jurisdiction. We note, however, that Rule 90.03 requires a garnishee to be served in the manner contemplated by Rule 54.13. Rule 54.13 only allows for personal service within the state of Missouri. This requirement is simply a recognition of the in rem nature of garnishment proceedings. See e.g., Palmer v. Bank of Sturgeon, 281 Mo. 72, 218 S.W. 873 (1920); Nelson v. Nelson, 173 Ga.App. 546, 327 S.E.2d 529 (1985); 38 C.J.S. Garnishment § 135 (1996); 6 AM.JUR.2D Attachment and Garnishment §§ 19, 20-24, 26, 34 (1999). These authorities suggest a state garnishment court cannot acquire jurisdiction over a debt owed by a non-resident to another non-resident when the contractual relationship was not ongoing in the state where the garnishment was issued. We also note that the sheriff's return did not indicate what agent of the corporation was served, nor did it recite when or where such service was accomplished. See Rules 90.03, 54.20, and 54.13; see also §§ 525.050 and 525.060. Arguably these added deficiencies are grounds for finding the trial court lacked subject matter jurisdiction over the subject debt. Eagle Bank and Trust, 659 S.W.2d at 777.