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more nor less than to hold and protect the legal title for the beneficiary to whose use it was granted and to convey it as and when that beneficiary should direct.

tions to that court to enter a judgment in accordance with the views herein expressed. BROWN and SMALL, CC., concur.

PER CURIAM. The foregoing opinion of RAGLAND, C., is adopted as the opinion of the court. All the Judges concur,

et al. (No. 12908.)

(288 Mo. 354)

to show sustaining of demurrer to amended
petition, so that appeal was not premature.

interlineation, and after demurrer was
Where plaintiffs amended the petition by
tained elected to stand thereon, and judgment
was rendered for defendants, the record, which
showed the action of the court, and that plain-
tiffs elected to stand on the petition, does not
establish that the appeal was premature, on
trial court on the amended petition, for upon
the theory that there was no action by the
amendment the original petition became an
abandoned pleading.
2. Attachment

[5] 2. The nature of the title or interest of the plaintiff remains to be considered. Under the law of the ecclesiastical organization of which the Cumberland Presbyterian Church of Higbee was a constituent member, its property, upon the dissolution of its congregation, passed to the McGee Presbytery of the Cumberland Presbyterian Church. That presbytery, by the union in 1906, was merged into KANSAS CITY RYS. CO. et al. v. McCARDLE and became the McGee Presbytery of the Missouri Synod of the Presbyterian Church in the United States of America, hereinafter (Supreme Court of Missouri, Division No. 1. called the presbytery. The presbytery was, June 6, 1921.) therefore, the owner of the entire beneficial 1. Appeal and error 337(1)—Record held interest in the real estate in controversy prior to the incorporation of the plaintiff in 1910. The identity of the presbytery was not merged into that of the plaintiff by the act of incorporation, nor did the title to its property pass to the plaintiff upon the latter's incorporation. Catholic Church v. Tobbein, 82 Mo. 418; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Rep. 887; Frank v. Drenkhahn, 76 Mo. 508. However, the presbytery by formal order directed the plaintiff to take control and possession of the premises, to sell and convey them, and to hold the proceeds upon certain trusts. It had theretofore caused the plaintiff to be incorporated solely for the purpose of executing such trusts, under its directions, and by the order just mentioned it invested the plaintiff, in the only way in which it could, with the equitable title to the property in trust for the purposes therein designated; thereupon the legal title also passed to plaintiff, under the statute of uses, there then being no further purpose to be subserved by a continuance of the trust under which the defendants J. H. Duncan and O. S. Fray were the mere depositaries of such title. Roberts v. Moseley, 51 Mo. 282, 286; Pitts v. Sheriff, 108 Mo. 110, 116, 117, 18 S. W. 1071; Cornwell v. Wulff, 148 Mo. 542, 554, 50 S. W. 439, 45 L. R. A. 53; Rector v. Dalby, 98 Mo. App. 189, 196, 197, 71 S. W. 1078; 39 Cyc. pp. 219–226.

71-Court in which action against employer might be maintained may impound employé's credits.

Where an employé of a street railway system, operating in Missouri and Kansas though resident in Missouri, could have maintained an action for wages in Kansas, the Kansas there by attachment. courts had jurisdiction to impound his credits

3.

Courts 516-Action by resident in foreign court may be restrained, where purpose was to evade local exemption laws.

Where a Missouri debtor was employed by a corporation doing business both in Missouri and Kansas, a Missouri creditor may be enjoined from beginning an action in the Kansas courts against his debtor by attachment, for laws, for the injunction operates in personam, the purpose of evading the Missouri exemption and is not an interference with the Kansas courts, but is merely the exercise of the same power which equity possesses to enjoin an action at law in a domestic court.

4. Constitutional law 207 (3)-Federal Constitution does not forbid the courts of equity from enjoining citizens of jurisdiction from suing in foreign state.

Our conclusion is that the plaintiff is invested with the legal title in fee simple to the premises in controversy, upon the uses and trusts specified in the order of the presbytery made at its meeting held April 14-16, 1914, and upon such other and further uses Federal Constitution, art. 4, § 2, does not as the presbytery shall from time to time forbid the courts of a state from enjoining resappoint, and that the defendants J. H. Dun-idents thereof from maintaining an action in can and O. S. Fray have no title thereto or a foreign state for the purpose of evading the any interest therein of any kind or character. local exemption laws. No question is raised as to the correctness of the judgment with respect to the defendants other than those last named.

The judgment of the circuit court is reversed, and the cause remanded, with direc

5. Constitutional law

328-Enjoining

of

Missouri creditor from suing in foreign state not denial of right of access to court.

The action of the Missouri courts in enjoining a Missouri creditor from suing his debt

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

6. Constitutional law 305-Attempt to en

or in a Kansas court so as to evade the Mis- "Come now plaintiff above named, and for souri exemption laws is not a violation of their cause of action against the defendants Const. art. 2, § 10, declaring that the courts above named states: That plaintiff the Kansas shall always be open for redress of grievances, City Railways Company is a corporation duly for the court in this case merely denied a organized according to law, operating a street Missouri creditor the right to use a foreign railway system in the cities of Kansas City, in court as a means of perpetrating a fraud. the state of Missouri, and vicinity, and in Kansas City, in the state of Kansas, and vicinity, its business; that plaintiff Allen C. Campbell and as such employs a large number of men in is an employé of said Kansas City Railways Company; that the defendant the Bentley Clothing Company is a corporation organized and existing under the laws of Missouri, and doing a credit clothing business in Kansas City, Mo.; that defendant Battle McCardle is an attorney, operating a collection office in Kansas City, Mo., collecting bills for a large number of credit houses located in Kansas City, Mo.

join a class of Missouri creditors from suing in Kansas not denial of uue process of law. Where it was sought, in an action by a Missouri debtor and his employer, a corporation doing business in Missouri and Kansas, to enjoin, not only the particular creditor from maintaining suit in Kansas to evade exemption laws, but to enjoin others engaged in the same practice, who were sought to be brought in by representation, the action cannot be deemed to work a denial of due process, in violation of Const. art. 2, § 30, for until the class sought to be affected was before the court there could be no adjudication as to their rights.

7. Action 50(10)-Petition held objectionable for misjoinder.

"The defendant Battle McCardle, who is a

"It is provided by the laws of Missouri (Revised Statutes of Missouri 1909, §§ 2180, 2183, and 2415), that this plaintiff, or any employer, cannot be charged as garnishee for more than 10 per cent. of any wages, due from him to a Where a street railway company did busi- defendant in its employ for the last 30 days' ness in Missouri and Kansas, and it became service, where the defendant and employé is a customary for Missouri creditors of its Mis-resident of the state of Missouri, a married souri employés to maintain actions in Kansas man, or at the head of a family. for the purpose of evading the Missouri exemption laws, and such creditors were prin-resident of the state of Missouri, and has his cipally represented by one collection attorney, an action by the corporation and a Missouri employé to enjoin maintenance of an action in Kansas cannot be joined with a cause of action generally against the attorney to restrain the maintenance of such actions in Kansas, for in such case the Missouri creditor would not be a necessary party.

8. Courts 516-Maintenance of numerous actions by an attorney in foreign state to evade domestic exemption laws may be enjoined.

Where a street railway company did business in both Missouri and Kansas, and an attorney for Missouri creditors undertook to evade the exemption laws by suing employés resident in Missouri in the courts of Kansas, a suit to enjoin the maintenance of such action may be maintained by the street railway com

pany.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

office in Kansas City, Mo., has at times nu-
merous accounts for collection against em-
ployés of this plaintiff. For the purpose of
harassing and annoying this plaintiff Kansas
City Railways Company, and for the purpose
of depriving the employés of said plaintiff of
the benefit of the exemptions allowed them by
the laws of the state of Missouri, as aforesaid,
said McCardle has been in the habit of in-
stituting numerous proceedings
upon said
claims against employés of said plaintiff, in
the courts of the state of Kansas, causing
plaintiff to be summoned as garnishee on ac-
count of the wages due from it to said em-
ployés, and refusing to allow said employés the
exemptions to which they are entitled under
the laws of Missouri. Said McCardle is con-
tinuing to so institute such proceedings in for-
eign jurisdictions, and to harass this plaintiff
and its said employés, and plaintiff Allen C.
Campbell, and threatens to continue so to do.

"Defendant McCardle represents numerous credit houses, among them the defendant Bentley Clothing Company. Plaintiff alleges that among the numerous claims upon which defendant McCardle has so instituted proceedings in foreign jurisdictions against employés of plaintiff Kansas City Railways Company is one of the defendant Bentley Clothing Company

Action by the Kansas City Railways Company and another against Battle McCardle and another. From a judgment for defendants upon plaintiffs' failure to plead over on the sustaining of the demurrer to the pe-against one Allen C. Campbell, one of the tition, plaintiffs appeal. Affirmed.

C. E. Cooley, of Kansas City, for appellants.

Battle McCardle, of Kansas City, for respondents.

above-named plaintiffs, who is a resident of the state of Missouri, a married man and at the head of a family, and as such is entitled to the exemptions allowed him by the laws of Missouri; that, proceeding upon said claim of defendant Bentley Clothing Company, deJAMES T. BLAIR, J. This is an appeal has caused suit to be instituted thereon against fendant McCardle, as its attorney and agent, from a judgment for defendants upon plain- said Allen C. Campbell in the state of Kansas, tiffs' failure to plead over after the trial and has caused this plaintiff Kansas City Railcourt sustained a demurrer to the follow-ways Company to be summoned as garnishee ing petition: therein, to appear and answer touching the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-30

amount due said Campbell for wages earned by him, as such employé of the said plaintiff, for the last 30 days' service, for the purpose and with the view of depriving said Campbell of the exemptions allowed him by the laws of the state of Missouri, and for the purpose of harassing and annoying this plaintiff Kansas City Railways Company and its employés, especially said Campbell.

"Plaintiff further alleges that the privilege of exemptions allowed by the laws of the state of Missouri is not recognized by the courts of the state of Kansas, the employés being nonresidents of that state, and such privilege cannot be interposed except in the state of Missouri, although said employés demand such exemptions of plaintiff that the proceedings of defendants, or either of them, are in fraud of the laws of the state of Missouri, and for the fraudulent purpose of depriving employés of plaintiff of their rights under such laws.

"Plaintiff further states that they have no adequate remedy or protection at law against the aforesaid fraudulent proceeding instituted by defendants Bentley Clothing Company and Battle McCardle as attorney and the moving factor, or against any such numerous proceedings instituted by defendant McCardle as collection attorney, and that, unless defendants and each of them, are restrained from instituting such proceedings in foreign jurisdictions for the purpose of depriving plaintiff Allen C. Campbell and other employés of the plaintiff of their exemptions and in fraud of the exemption laws of the state of Missouri, plaintiff Kansas City Railways Company and its numerous employés will be subject to a multiplicity of suits, and be put to great annoyance and expense because of said acts of defendants, or either of them, and plaintiff Allen C. Campbell will suffer irreparable injury, and be deprived of his rights, and that the employés of plaintiff Kansas Railways Company will be deprived of the right of exemptions allowed them by the laws of the state of Missouri, and will be subjected to great hardship and suffering because of being so fraudulently deprived of their right of exemptions, and will be subjected to irreparable injury at the hands of defendants, and especially the defendant McCardle, if each and every employé whose rights are so fraudulently denied him is compelled to proceed separately against defendants.

"Wherefore plaintiff prays the court to make an order, enjoining and restraining defendants, or either of them, from further proceeding in or prosecuting the above-mentioned suit against Allen C. Campbell, and that either or both of them be enjoined from instituting any further proceeding, for themselves or for anybody else, either as plaintiff or as an attorney, in any state other than the state of Missouri, on any claim whereby they, or either of them, seek to charge plaintiff the Kansas City Railways Company as garnishee, on account of any wages due from it to any of its employés for the last 30 days' services, where said employé and the creditor both reside in the state of Missouri, and the employés are married men or at the head of a family, and as such entitled to exemptions, and that, after evidence has been introduced herein and this matter heard, this order be made perpetual, and for such other and further relief as to the court may seem meet and proper."

The demurrer filed in this petition by defendants reads as follows:

"Comes defendant Bentley Clothing Company and Battle McCardle, and demurs to amended petition of the plaintiff herein, and for cause thereof states:

"That said petition fails to set forth facts sufficient to constitute in equity a cause of equitable relief in favor of either of the plaintiffs herein, and against either of the defendants herein.

"That there is apparent upon the face of said amended petition a want of equity therein. "For special grounds of demurrer to said amended petition these defendants state: "(1) That the action herein is not prosecuted in the name of the real party in interest, in that the Kansas City Railways Company, a corporation, has no interest in and to the exemptions from garnishment of wages of Allen C. Campbell, and that the right, if any, of said Campbell to claim exemptions is a privilege personal and peculiar to him, and cannot be asserted by the Kansas City Railways Company.

"(2) That there is a defect of parties plaintiff, in that there is united in said petition an alleged cause of action in favor of the Kansas City Railways Company and an alleged cause of action in favor of said Allen C. Campbell, and defendants state that there is no privity of relationship between the Kansas City Railways Company and Allen C. Campbell, and the two alleged causes of action are several and distinct, and not joint, and cannot be united in one petition.

"(3) That several alleged causes of action have been improperly united in said petition, to wit:

"(a) A pretended cause of action in favor of Kansas City Railways Company and a pretended cause of action in favor of Allen C. Campbell against Battle McCardle.

"(b) A pretended cause of action in favor of Kansas City Railways Company and a pretended cause of action in favor of Allen C. Campbell against Bentley Clothing Company.

"(c) A pretended cause of action in favor of all persons now employed or to be employed by the Kansas City Railways Company and against Bentley Clothing Company and Battle McCardle.

"(d) A pretended cause of action in favor of the Kansas City Railways Company and against all persons whomsoever in the future, who may be represented by Battle McCardle as attorney at law.

"(e) A pretended cause of action in favor of all persons now employed or to be employed by plaintiff against all persons whomsoever who in the future may employ Battle McCardle as attorney at law.

"(f) A pretended cause of action by Allen C. Campbell against all persons in the future, who may employ Battle McCardle as attorney at law.

"(3) That several alleged causes of action have been improperly united in said petition, in that there is united a pretended cause of action by the Kansas City Railways Company against Bentley Clothing Company and Battle McCardle on account of employés now ployed or to be employed by it.

(232 S.W.)

"A pretended cause of action by Allen C., loc. cit. 478, 36 S. W. 29; State ex rel. Leahy Campbell against Battle McCardle and against v. Barnett, 193 Mo. App. loc. cit. 44, 180 all persons who in the future may employ S. W. 458; Farrar v. Am. Express Co., 219 Battle McCardle, as attorney at law, in that S. W. loc. cit. 993, 994; Assurance Co. v. said Allen C. Campbell has no concern or interest whatsoever with persons in the future, as shown in said petition, who may employ Battle McCardle.

"Defendants state that each of said pretended causes of action are distinct and several, and that the Kansas City Railways Company has no interest, privity, or concern with any pretended cause of action in favor of Allen C. Campbell.

"That the relief prayed for in said petition contravenes article 4, section 1, of the Constitution of the United States.

"That the relief prayed contravenes article 4, section 2, of the Constitution of the United States.

"That the relief prayed contravenes section 1, article 14, of the Constitution of the United States, and article 2, section 30, of the Constitution of the state of Missouri.

"That the relief prayed contravenes article 2, section 10, of the Constitution of the state of Missouri.

"That the relief prayed contravenes sections 951, 952, 953, 954, and 957 of the Revised Statutes of Missouri 1909.

"Wherefore defendants pray judgment, and that the temporary restraining order be discharged, and that the court award to them a reasonable allowance as attorney's fee herein." The court sustained the demurrer, and entered judgment as stated, and plaintiffs appealed.

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[1] I. Defendant contends that the rec ord does not show any action by the trial court upon the amended petition, and that therefore the appeal is premature. This is based upon the fact that the record shows "action by the court on petition," and that "plaintiff elected to stand on petition." De fendant argues this necessarily refers to the original petition, and not to the amend ed petition. There is nothing in this contention. The only petition in the case when the court acted was the amended petition. The original petition, when the court ruled, was merely an abandoned pleading, if it really had any separate legal existence at all. The amendment was by interlineation. The word "petition" in the record must be construed to mean the pleading which constituted a petition at the time the ruling was made, and not some paper which once had been, but no longer was, a petition.

[2] II. As against the demurrer filed, it sufficiently appears from the allegations of the petition that Campbell could have maintained a suit in Wyandotte county, Kan., against the railways company for the wages which defendants are seeking to reach by garnishment proceedings in that county. The Kansas Courts, therefore, had "jurisdiction to impound" Campbell's "credits there by 'the attachment." Hardware & Mfg. Co. v. Lang & Co., 127 Mo. loc. cit. 247, 29 S. W. 1010; Howland v. Railway, 134 Mo.

Walden, 238 Mo. loc. cit. 63, 141 S. W. 595. [3, 4] III. The petition alleges and the demurrer admits that the exemption laws of Missouri cannot be invoked successfully by a citizen of this state in the courts of Kansas; that Campbell's wages, which are sought to be reached by garnishment in Kansas, are exempt under the laws of Missouri, the state of Campbell's residence; that defendants are also residents of Missouri; and that the purpose of defendants in resorting to the Kansas court is to evade and defeat the exemption laws of Missouri, and deprive Campbell of their benefit. Injunction will lie by one citizen of this state against another to prevent such a fraud upon exemption rights and upon our laws. The decisions are practically unanimous in support of this doctrine. Kelly v. Siefert, 71 Mo. App. loc. cit. 147; Wabash Western Ry. Co. v. Siefert, 41 Mo. App. loc. cit. 41; Wierse v. Thomas, 145 N. C. 261, 59 S. E. 58, 15 L. R. A. (N. S.) 1009, and note, 122 Am. St. Rep. 446, and note. The injunction operates in personam, and is not an interference with the courts of the foreign state. No restraint upon the Kansas court is attempted. The court of this state is asked simply to restrain one citizen of this state from using the Kansas court as an instrument whereby he may inflict injustice upon another citizen of this state. It is but the same sort of jurisdiction which equity possesses to enjoin an action at law in a domestic court, in proper circumstances. High on Injunction (4th Ed.) § 106, p. 116 et seq.; Freeman on Executions (3d Ed.) § 209, p. 1076; Keyser v. Rice, 47 Md. loc. cit. 213 et seq., 28 Am. Rep. 448; Margarum v. Moon, 63 N. J. Eq. loc. cit. 588, 589, 53 Atl. 179; Allen v. Buchanan, 97 Ala. loc. cit. 401 et seq., 11 South. 777, 38 Am. St. Rep. 187. In these citations will be found cited numerous other decisions in point. With respect to the federal constitutional questions which are raised, the Supreme Court of the United States has held valid the principle upon which this sort of proceedings rests. In Cunningham v. Butler, 142 Mass. 47, 6 N. E. 782, 56 Am. Rep. 657, there was presented a question whether a Massachusetts court could enjoin parties from prosecuting a suit begun in a court of a foreign state by one citizen of Massachusetts against another in anticipation of insolvency proceedings in Massachusetts and for the purpose of attaching property in the foreign state and preventing its seizure and distribution in insolvency proceedings, i. e., to defeat those proceedings pro tanto. The principle of the cases permitting injunction in circumstances like those in the case

The very statement of the question makes clear the soundness of the ruling.

now at this bar was applied, and it was | Kansas against Campbell; (2) actions on held there was no constitutional restric- numerous claims of the Bentley Clothing tion upon the power of the Massachusetts Company against employés of the railways court to prevent, by injunction, the contem- company in which defendant McCardle repplated fraud. The cause went by writ of resents the Bentley Clothing Company; (3) error to the Supreme Court of the United attachments on all other claims of like kind, States. Cole v. Cunningham, 133 U. S. 107, as under (2), in which McCardle may here10 Sup. Ct. 269, 33 L. Ed. 538. That court, after represent the Bentley Clothing Comafter discussing the question, stated it thus: pany; (4) on all other claims of the Bent"So that, after all, the inquiry is whether, in ley Clothing Company; (5) on all claims of a proper case, the equity courts of one state any citizen of Missouri who is or may be can control persons within their jurisdiction represented by McCardle now or hereafter from the prosecution of suits in another. If against any employé of the railways comthey can, in accordance with the principles of pany who is a citizen of Missouri and enequity jurisprudence and practice, no reason titled to exemptions with respect to the is perceived for contending that the Constitution of the United States prescribes any dif- wages which may be garnisheed. It is obferent rule." vious that whatever may be the rights of the plaintiffs, jointly or severally, and without regard to the question whether Campbell can be permitted to sue in behalf of all other employés in a like situation, the Bentley Clothing Company is in no respects a party, present or prospective, to many of the causes of action the enforcement of which by garnishment in Kansas is sought to be prevented. It has no connection with the several other clients of McCardle against whom injunction is sought, and no connection with claims of other firms or persons against Campbell and other employés of the railways company. While the petition, had no objection been raised to it, might have warranted some relief, yet the objection for misjoinder was made and sustained. That the ruling in this particular was correct is clear. Plaintiffs did not amend and eliminate the misjoinder, but stood on the petition. The judgment is af

[5, 6] Concerning the objection based upon section 30 of article 2, and section 10 of article 2, of the state Constitution, there seems to be no reason upon which those sections could be held applicable. The question whether parties sought to be affected, and whom plaintiffs attempted to bring in by representation or as a class, are in court is not a constitutional question at all. They must be in court before the judgment could affect their rights. The question whether they are in court requires no construction of the Constitution. So far as concerns defendants' rights to access to courts for redress for their grievances, that furnishes no ground for denying them the right to use a court as a means of defeating exemption rights and perpetrating what amounts to a

fraud.

[7] IV. The defendant who is sued, and not the garnishee, usually is the applicant for injunctive process in circumstances like those disclosed by the petition in this case. This was pointed out in Wabash Western Ry. Co. v. Siefert, 41 Mo. App. loc. cit. 41, in which the garnishee was sole plaintiff. In that case the St. Louis Court of Appeals held, in an opinion by Rombauer, P. J., concurred in by Thompson and Biggs, JJ., that the garnishee was threatened with a multiplicity of suits, and was entitled to have each of them enjoined by joining in each, as coplaintiff, the individual employé proceeded against; that since there was no demurrer for defect of parties, the garnishee, as sole plaintiff, was entitled to affirmance of the judgment against Siefert, who held, as assignee, numerous claims against individual employés of the railway company. Whether this ruling is correct need not be decided in this case. For present purposes let it be assumed to be so. The The question of misjoinder is raised by the de

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GRAVES, J. [8] I concur in the result of the opinion herein. The basis of such an action is the fraud upon the rights given to an employé in Missouri by our exemption statutes. statutes. The petition in this case covers more ground than it should have covered. In my judgment, the paintiff railway company could have maintained a suit against McCardle to prevent him from instituting these numerous suits, the object of which was to obviate the effect of the exemption statutes of Missouri as to citizens of Missouri. The railways company has such an interest in these attachment suits (as garnishee) as to give it a standing as a party plaintiff. As garnishee it must not let the case go by default, but must place itself aright with its Missouri creditor employés by appearing continuously in such cases. It has such interest by reason of the multiplicity of suits as will permit it to The proceedings against which in maintain an action such as is here brought, junction is sought to prevent defendants in its own right, as against McCardle, or from prosecuting attachments in Kansas as against McCardle and any particular are: (1) The attachment actually begun in client of his, who was bringing, or threaten

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