Linn County Bank v. Davis

Citations

• 109 Kan. 758
• 202 P. 97
• 1921 Kan. LEXIS 361

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Bulk-sales Act — Sale of Merchandise in Violation Thereof — Rights of Purchaser to Subrogation• — Prior Garnishment Lien. Bank v. Hill-man, 104 Kan. 264, 178 Pac. 420, followed, and held, that a purchaser of a stock of goods in violation of the bulk-sales law, although he acted in entire good faith and paid full value, is not entitled to subrogation to claims of general creditors as against a debt due to a general creditor who has secured a valid attachment upon the stock and fixtures subsequent to the sale.</p> <p>2. SAME' — Garnishment is a Form of Attachment. Garnishment is merely another form of attachment — a species of seizure, by notice, of property and funds in the hands of a third person. (Beamer v. Winter, 41 Kan. 596, 21 Pac. 1078; Young v. Shockey, 80 Kan. 78, 101 Pac. 631.)</p> <p>3. Same — Question of Priority of Garnishment Lien Over Claims of General Creditors Not Res Judicata. The bank sued the seller oí the stock on a promissory note and garnished the purchaser, who answered denying liability to the maker of the note. Issue was taken on the answer, and on judgment being rendered against the bank, the case was appealed (Bank v. Davis, 103 Kan. 672, 175 Pac. 972), where it was held that the bank was entitled to some relief, the extent of its recovery to be determined in another trial. The question whether a proceeding by garnishment creates a lien upon the funds and property in the hands of the garnishee was not raised, nor considered by the court.. It was not a question in the former trial below. Held, that upon this question the former decision is not res judicata, and further, held, that notwithstanding the mandate in that case directed the court to find the value of the stock and the proportion which the bank’s claim bore to the total sum Owed by the seller when the stock was transferred and to render judgment accordingly, the scope of the decision of the former appeal should no.t be enlarged to defeat a just c