Corinth State Bank v. Nixon

• Decision Date: 22 November 1926
• Docket Number: 25976
• Court: Mississippi Supreme Court
• Parties: CORINTH STATE BANK v. NIXON. [*]

110 So. 430

144 Miss. 674

CORINTH STATE BANK v. NIXON. ^[*]

No. 25976

Supreme Court of Mississippi

November 22, 1926

Division B

1 GARNISHMENT. Garnishee permitting decree pro confesso and final judgment to be taken and court to adjourn without objection cannot have judgment set aside because he mailed answer to clerk of court prior to term at which judgment was rendered.

Where a person is garnished in a proceeding of garnishment issued on a judgment, and such garnishment is regularly served and such garnished person permits a decree pro confesso to be taken against him at the return term and final judgment thereon and permits the court to adjourn without action on his part he cannot maintain a bill to set aside such judgment against him on the ground that he had mailed his answer to the clerk of the court some months prior to the term at which the judgment was rendered against him. In such case he is guilty of negligence in not appearing at the term and seeing that the proper order was entered.

2. EQUITY. Chancery court may not set aside decrees after adjournment of term at which they were rendered, except for fraud, accident, or mistake.

A chancery court is without jurisdiction to set aside its decrees after the adjournment of the term of court at which the decrees are rendered, unless the facts with reference to such decrees make a case within the jurisdiction of fraud, accident, or mistake.

HON. ALLEN Cox, Chancellor.

APPEAL from chancery court of Alcorn county, HON. ALLEN COX, Chancellor.

Suit by O. L. Nixon against the Corinth State Bank to set aside a judgment. From a judgment for plaintiff, defendant appeals. Reversed, and bill dismissed.

Judgment reversed and bill dismissed.

W. C. Sweat, attorney for appellant.

When this writ of garnishment was regularly served on the appellee, it was his duty to appear at court and make answer to the writ, and he has not performed the duty required of him by law when he writes an answer and mails it to the clerk. In fact it is his duty to see that the answer is filed; and not only see to it that the answer is filed, but to appear in court to substantiate, if necessary, the answer which he has filed. Sections 1937, 1940, 1942, Hemingway's Code (sections 2342, 2345, 2347, Code of 1906).

Section 1956, Hemingway's Code (section 2361, Code of 1906) shows that it was not the intention of the legislature that the garnishee should mail his answer or send it by messenger and thereby absent himself from the court. This section clearly shows that it was intended that the garnishee should personally appear and answer. Otherwise, there would have been no provision for him to have received the mileage and per diem of a juror; and if after being personally served he absents himself from court and a judgment is rendered against him, he has no right to complain. He has had his day in court.

When the judgment creditor had the garnishment issued in the regular way, it was up to the garnishee to see that his answer was filed. There is absolutely nothing in the world that the Corinth State Bank did that prevented the garnishee's answer from being filed. The very best that can be said for the appellee in this case is that his failure to have his answer filed and to appear in court to substantiate the same is due to his own inexcusable neglect, and courts of equity will not intervene to relieve a man from the consequences of his own negligence. 20 C. J., section 534, page 341; Warren v. Copp (La.), 19 So. 746; Davis v. Presler, 5 S. & M. 459; Roots et al. v. Cohen et al., 12 So. 693.

This court has held that where the defendant had ample time to appear and defend the action and he fails to aver in his bill that he employed an attorney and informed himself of his defense, and had filed no plea and had subpoenaed no witnesses, a judgment would not be vacated. Cole v. Hundley, 8 S. & M.

If courts of equity are to entertain bills to vacate and set aside judgments under such slim and frivolous allegations as the one set up in this bill, the solemn judgments of the courts of the land are certainly very insecure and are liable to be set aside and vacated any time. There must be an end to litigation.

T. A. Clark, for appellee.

On the day the answer was prepared and sworn to, the garnishee, Nixon, mailed the same to the clerk of the chancery court of Alcorn county in an envelope properly addressed and with the required postage on the same. The envelope also had the return in the left-hand corner thereof, and the same was never returned to garnishee. The clerk of the chancery court never filed the answer of appellee.

After the appellee received notice that the bank had obtained a judgment against him, he immediately began to make inquiry about the same and immediately filed a bill in the chancery court to have the decree pro confesso and the final decree set aside, the term of court at which the above decrees were taken having adjourned.

There is a distinction between this case and ordinary cases. In the first place there was no relation of debtor and creditor between appellee and appellant. The writ of garnishment was more in the nature of process for a witness than in an ordinary action where the party served with process was made a defendant. The object of the procedure was to subject an indebtedness or property in the hands of the garnishee to the payment of the judgment against the original defendant in the action. 28 C. J., page 338, section 525 (b).

There is another element besides fraud or bad faith which if true, without the existence of either, clearly entitled the garnishee to have the default judgment set aside and that is if the garnishee has a meritorious defense, unless the garnishee has not been guilty of gross neglect. It cannot be said so far as this record is concerned but that the garnishee had a meritorious defense and he was not guilty of gross neglect. 28 C. J., page 339, section 527.

In Evans v. Mohn, 55 Iowa 302, 7 N.W. 593, the court held that where a party was engaged in building and moving into a new hotel at the time of service and on the return day of the writ of garnishment, and garnishee forgot to appear and answer, the court held from this showing that garnishee was not guilty of negligence.

In Yost v. Alderson, 58 Miss. 40, the court says: "Where a pro confesso has been taken through the mere neglect of defendant to answer and the consequences of the neglect do not operate injuriously to the complainant except to deprive him of the advantage of the decree, the defendant should not be deprived of making defense." See also Miller v. Port Gibson Brick, etc., Co., 78 Miss. 170, 28 So. 107. Warren v. Copp (La.), 19 So. 746 cited by appellant is not in point. The messenger of the garnishee told the garnishee that he had filed his answer with the clerk when in truth and in fact he had not, and the court held that the messenger was the agent of the garnishee and that the garnishee was therefore bound by his acts. Roots v. Cohen, 12 So. 593, cited by appellant is good authority for appellee.

On the question as to whether the clerk of the court received the sworn answer of garnishee, See 16 Cyc., page 1071, paragraph G. The decree of the court below should be affirmed.

W. C. Sweat, in reply, for appellant.

The test cited by counsel for appellee has reference to motions to set aside and vacate during the term of court at which the judgment was rendered. 28 C. J., section 526, page 338. In the case at bar, it is not a motion made to set aside a default judgment at the term at which it was rendered, but an independent bill in equity, filed long after the term of court at which it was rendered to vacate or set aside a final judgment. Warlick v. Neal Loan Co., 120 Ga. 1070, 48 S.E. 402. Yost v. Alderson, 58 Miss. 40, cited by appellee, is not an authority in any sense of the word for appellee's position.

No respectable authority can be found in support of the proposition that when a garnishee is served with summons, as he was in this case, and given several months in which to answer the same, having taken legal advice in the matter in the meantime and ascertained what his duty was, and then failed to file any answer or make any appearance at all in court, when there is no fraud to be found or imposition of any kind on the part of the complainant, and allow a judgment by default to be taken against him under these circumstances, and then long after the term of court, file a bill to vacate the judgment, that a court of equity will then set it aside and grant him a trial thereof.

Argued orally by W. C. Sweat, for appellant, and T. A. Clark, for appellee.

OPINION

ETHRIDGE, J.

The Corinth State Bank, appellant, obtained a judgment against W. N. and R. A. Nixon for two thousand nine hundred ninety-nine dollars and fifteen cents on the 24th day of September, 1925. Upon the 24th day of October, 1925, upon the suggestion of the Corinth State Bank, in writing, a writ of garnishment was filed reciting a judgment against W. N and R. A. Nixon, and suggesting that C. L. Nixon, of Tishomingo county, was indebted to W. N. Nixon, and prayed for a writ of garnishment to issue against the appellee, O. L. Nixon, and complainant in the court below, which writ was issued and served personally upon the appellee, O. L. Nixon. Service was executed on the 26th day of October, 1925. The writ of garnishment directed the said O. L. Nixon to appear at the courthouse in the city of Corinth on the...