Madden v. Pfeifer

Citations

• 106 Kan. 500
• 188 P. 229
• 1920 Kan. LEXIS 591

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — In Justice Court — Independent Action Against Garnishee — Pleadings. Where a separate action is brought under the justice code (Gen. Stat. 1915, § 7738) “to enforce an order against the garnishee made by the justice of the peace, the proceeding is an independent one, governed by the ordinary rules of pleading, and the defendant is no more concluded by the documents filed in the justice court than by the order there made against him.” (Lamb v. Taylor, 101 Kan. 642, 644, 168 Pac. 673.)</p> <p>2. Same — Independent Action Against Garnishee — Necessary Allegations of Petition. In such an action it is necessary for plaintiff to allege that defendant was indebted to the defendant in the original action, or had money, property or effects in his possession or under his control at the time the garnishee summons was served upon him, as he can recover only “what shall appear to be owing by” the garnishee to the original defendant when the garnishee summons was served.</p> <p>3. Same — Independent Action Against Garnishee — Petition Subject to Demurrer. In such an action, where it is plain from the bill of particulars that the plaintiff proceeds upon the theory that he can recover by merely showing that defendant was properly brought into court as garnishee and examined under oath; that the justice made a finding that he was indebted to the defendant and ordered him to pay the money into court, which he refused to do, the pleading is subject to demurrer.</p>