Missouri, Kansas & Texas Railway Co. v. Morris

BROADDUS, P. J. This is an action of replevin to recover certain lumber belonging to plaintiff, which had been sold under an execution issued against the plaintiff by a justice of the peace, upon a judgment which the defendant had obtained against plaintiff as garnishee. The defendant in May, 1904, brought a suit by attachment before a justice of the peace, against one W. E. Seifer, upon a promissory note. The ground relied on in the attachment suit was that Seifer was a non-resident of the ste to [668] The appellant herein was garnisheed and thus made a party to the proceedings. On April, 28, 1905, an order of publication was made for the defendant under the name of W. E. Seifer to appear and answer to the cause on May 20, 1905. The defendant not appearing at that date judgment was rendered sustaining the attachment. A summons was issued for the garnishee to appear on April 28, 1905, to answer interrogations, upon Avhich the constable made the following return: “I hereby certify that I delivered a true copy of the within summons to J. F. McDougall, agent of the Missouri, Kansas & Texas Railway Company, at Sedalia, Missouri, on the 17th day of April, 1905, in the city of Sedalia, county of Pettis, and State of Missouri.” On April 21st, the garnishee, the appellant herein, submitted its answer to the interrogations filed in Avhich it denied all indebtedness to Seifer, or that it had in its possession any money or property belonging to him; and further, that it Avas not subject to garnishment for the demand under the provision of section 3447, Revised Statutes 1899. On April 28th, Morris filed his denial of the garnishee’s answer. On the following day judgment was rendered against the garnishee by default. On this judgment the execution was issued under which the constable seized the lumber, the property replevined. The judgment Avas for defendant and plaintiff appealed. We have stated enough of the facts for the purpose of the case. The appellant’s principle contention is that the justice under' the service by publication acquired no jurisdiction to render judgment sustaining the attachment, for the reason; that, the order of publication did not give the Christian name of the defandant; but against him as W. E. Seifer. It is held: “Where in an action against a non-resident, the order of publication against the defendant gave his name as Q. R. No669 land instead of Quinces R. Noland, and there was no personal appearance under the order of publication, the court acquired no jurisdiction.” [Skelton v. Sackett, 91 Mo. 377.] And to the- same effect is the holding in Turner v. Gregory, 151 Mo. 100. And the rule is also recognized in Vincent v. Means, 184 Mo. 327. But defendant insists that the plaintiff as garnishee by its failure to appear and defend the garnishment is estopped and cannot at this time claim that the judgment rendered against it is void, and relies to support its position upon Fletcher v. Wear, 81 Mo. 524. But the effect of the holding does not go to sustain defendant’s position, but on the contrary to overturn it, and sustain the .theory of plaintiff. Other questions are raised .by the appellant, but as the record shows in any light it may be considered, that the judgment sustaining the attachment is void for the reason stated, and further discussion of the case would not be profitable. The cause is reversed and remanded. All concur.