The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-12-10

4
No 1854
The Greenwood County Bank, Appellee,
The o. B. Walker Telephone Company
| Defendant A. F. Eby, Garnishee, and
dIekauft. Interpleader, Appellants.
Appeal from Elk County.
MODIFIED.
No. 17.S45.
| The Western Electric Company, Appel
lants,
| The o. B. Walker Telephone Company,
ct al, Appellees.
Appeal from Elk County
No. 17,s46.
The North Electric Company, Appellant,
The O. 3. Walker Telephone COMPANY.
ct al, Appellees.
Appeal from Elk County.
MODIFIED.
Syllabus. By the Court. Benson. j.
1. Upon issues between the plaintiff and
an intervenor claiming a fund garnished
in the action, the validity of a mortgaGe
under which the fntervenor claimed the
fund was assailed. Upon a review of the
evidence it IS held sufficient to sustain
the defendant telephone company to Sc
cure debt of its president, and not q
debt of the company that it was taken
with knowledge of these facts, and is not
a valid obligation of the company.
2 Issues between the plaintiff, gar
nishee, and intervening claimants OF q
judgment was rendered thereon, and at
the same time Judgment was rendered
against the principal defendant which
any error in trying these issues
before judgment was entered against
the principal defendant was waived by
proceeding to such trial without objection
or request for delay.
3. The absence of a summons from the
files after a judgment is rendered and tho
fact that the appearance docket does nor
contain an entry Of tn return thereon, do
not render a judgment void which recites
that the defendant had been duly and
legally served with summons by personal
service upon the president, o. B. Walker
and that the company is in default.
4 A cflattel mortgage was given by the
telephone company to secure a valid debt
of the company, and also the individual
debt Of its president. 1t is held that the
mortgage is not void in toto as matter of
law, but is void if the mortgage intended
in SO taking the mortgage with such ex-
cess of Indebtedness included in It's terms
TO defraud, hinder or delay other creditors
of the company. The evidence upon this
question of fact is examined and it is held
that finding that the mortgage was in
valid is not sustained by the evidence.
5. After a garnishment summons has
been served in an action by creditor OF
the principal defendant, and an answer
has been filed by the geTntshee, he paid
claimed 1t, and who had been implicated
in the action. Other garnishee summons
were then served upon the same gar
nishee in actions by other creditors of the
swered in these later actions stating that
he had paid the fund over to such claim
ant. Tbereupon the claimant was also
gaTniSheed- Issues were made and tried
between the several plaintiffs, the gar
nishee, the claimant. and another fnte--
venor who claimed the fund under the
mortgage referred to in the fourth para
graph above. the principal defendant be-
ing in default. It is held that the claim
ant of the fund (who is the intervepor
mentioned in the first paragraph should
be held as such garnishee, the fund
brought into court. and applied according
to the prior1ties stated in the opinion.
All the Justices ccncurring.
Attest: D. A. VALENTINE.
ISeal1 Clerk Supreme Court.
No. 1886
Arthur Capper, Plaintiff,
C. c. stotIer, as County Clerk Of Wa
baunsee County, and B. BuchIi, William
Chlrig, and D. c. Robinson. as Com
missioners Of Wabaunsee County, ct al.
ORIGINAL PROCEEDING
IN MANDAMUS.
Motion to Quash Alternative Writ.
SUSTAINED.
Syllabus. BY the Court Mason. J.
After the county board OF canvassers
has in good faith completely and correctly
canyassed the returns of election,
which are regular on their face. and ad-
journed SINE DIE, the members of an
election board can not be compelled to re-
convene and count ballots for a state
office which they had enormously rejected
and returned as void, for the reason that
under such circumstances the county can
wasting board has passed out of existence
and can not be revived by its own action
or by that of a court.
Burch, J., Smith, J., Porter, J., and
Benson, J., concurring-
Johnston, c. J., and West, J., dissenting.
true copy.