Kansas City Railways v. McCardle. The decisions are practically unanimous in support of this doctrine. [Kelly v. Siefert, 71 Mo. App. 1. c. 147; Wabash Western Ry. Co. v. Siefert, 41 Mo. App. I. c. 41; Wierse v. Thomas, 145 N. C. 261, 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. [1 High on Injunctions (4 Ed.), sec. 106, p. 116, et seq.; 2 Freeman on Executions (3 Ed.), sec. 209, p. 1076; Keyser v. Rice, 47 Md. 1. c. 213, et seq.; Margarum v. Moon, 63 N. J. Eq. 1. c. 588, 589; Allen v. Buchanan, 97 Ala, 1. c. 401, et seq.] 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, 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 now at this bar was applied, and it was held there was no constitutional restriction upon the power of the Massachusetts court to prevent, by injunction, the contemplated fraud. The cause went by writ of error to the Supreme Court of the United States. [Cole v. Cunningham, 133 U. S. 107.] That court, after Kansas City Railways v. McCardle. discussing the question, at page 116, stated it thus: "So that after all, the inquiry is, whether in a proper case, the equity courts of one State can control persons within their jurisdiction from the prosecution of suits in another. If they can, in accordance with the principles of equity jurisprudence and practice, no reason is perceived for contending that the Constitution of the United States prescribes any different rule." The very statement of the question makes clear the soundness of the ruling. Concerning the objection based upon Section 30 of Article 2 and Section 2 of Article 10 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 attempt 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. 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 Parties: Western Ry. Co. v. Siefert, 41 Mo. App. 1. c. 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, J.J., that the garnishee was threatened with a multiplicity of suits and was entitled to have each of them enjoined by joining in each, as co-plaintiff, the individual employee proceeded against; that since there was no demurrer for defect of parties, the garnishee, as sole plaintiff, was entitled to affirmance of the judg Kansas City Railways v. McCardle. ment against Siefert, who held, as assignee, numerous claims against individual employees 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 question of misjoinder is raised by the demurrer. The proceedings against which injunction is sought to prevent defendants from prosecuting attachments in Kansas, are: (1) the attachment actually begun in Kansas against Campbell; (2) actions on numerous. claims of the Bentley Clothing Company against employees of the Railways Company in which defendant McCardle represents the Bentley Clothing Company; (3) attachments on all other claims of like kind [as under (2)] in which McCardle may hereafter represent the Bentley Clothing Company; (4) on all other claims of the Bentley Clothing Company; (5) on all claims of any citizen of Missouri who is or may be represented by McCardle now or hereafter against any employee of the Railways Company who is a citizen of Missouri and entitled to exemptions with respect to the wages which may be garnisheed. It is obvious 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 employees 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 employees 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. Kansas City Railways v. McCardle. The judgment is affirmed. All concur; Graves, J., in separate opinion, in which all concur. It GRAVES, J. (concurring).—I concur in the result of the opinion herein. The basis of such an action is the fraud upon the rights given to an employee in Missouri by our exemption statutes. The petition in this case covers more ground than it should have covered. In my judgment, the plaintiff Railways 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 em ployees by appearing continuously in such cases. has such interest by reason of the multiplicity of suits as will permit it to maintain an action such as is here brought, in its own right, as against McCardle, or as against McCardle and any particular client of his, who was bringing or threatening to bring such suits. The Railways Company could join McCardle and any one particular client, as defendants. It could maintain an action as against McCardle alone as to bringing such suits for any or all clients represented by him. The Railways Company had more than a passing interest in the perpetration of this fraud upon the laws of the State. It is being continuously harassed by these numerous garnishment proceedings, to which it is made a party, in the very act of perpetrating the fraud upon our laws. We are firmly convinced that the Railways Company can maintain an action to enjoin such frauds upon our laws. It was not necessary for it to have joined Campbell as party plaintiff. All the judges concur in these additional views. 288 Mo.-24 Larrick v. Heathman. MARY A. LARRICK et al., Appellants, v. FREDERICK G. HEATHMAN et ux., Appellants. Division One, June 6, 1921. 1. DEED BY ENTIRETY; Resulting Trust: Character of Proof. A deed conveying land to "Fred. G. Heathman and Fannie B. Heathman, husband and wife" upon its face creates an estate by the entirety. But after her death a resulting trust in her favor may be shown by parole proof; but the burden of proof to overcome the deed is upon her heirs or devisees, and such proof must be of such strength as will leave no doubt as to the trust. 2. Presumption: Intention. The presumption of a resulting trust arising from the fact of one party paying all or a part of the consideration money for a deed may be rebutted by parole testimony, and the intention of the parties at the time the deed was made is a material element in determining the question of trust or no trust. 3. RESULTING TRUST: Wife's Money: Used Without Her Written Consent. Since the Married Woman's Acts of 1889 became effective, a resulting trust arises in favor of the wife (and upon her death in favor of her heirs) upon the purchase of lands with her money and the taking of title in her husband, without her written consent. But she can purchase land herself and use her own money to pay for it and have the deed name her and her husband as grantees, without her written consent or a written contract, and no resulting trust will arise in her favor. 4. : : Deed by Entirety: By Wife's Direction. The deed was made to the husband and wife in November, but not delivered until January. The land of her father was sold in October, and she received $1572 for her share therefrom; and that money and $500 paid by him went to pay for the land, the greater part of the consideration of $2200 being paid when the deed was delivered in January. They went to the seller and talked over with him the matter of the deed, and he testified that both said they had money to put in the land and wanted the deed so drawn that if either died the other would get the land, and he suggested that they have a joint deed drawn, and both agreed to that, and she said that was the way she wanted the deed made, |