Craig, State Tax Collector v. Barber Bros. Contracting Co.

• Citation: 199 So. 270,190 Miss. 182
• Decision Date: 23 December 1940
• Docket Number: 34488
• Court: United States State Supreme Court of Mississippi
• Parties: CRAIG, STATE TAX COLLECTOR, v. BARBER BROS. CONTRACTING CO. et al

199 So. 270

190 Miss. 182

CRAIG, STATE TAX COLLECTOR, v. BARBER BROS. CONTRACTING CO. et al

No. 34488

Supreme Court of Mississippi

December 23, 1940

Suggestion Of Error Overruled February 10, 1941.

APPEAL from the circuit court of Hinds county, HON. J. P. ALEXANDER Judge.

Attachment proceeding by Carl N. Craig, State Tax Collector, against the Barber Bros. Contracting Company, wherein writs of garnishment were served upon the State Highway Commission and others. From an order or judgment quashing the writs of garnishment served upon the State Highway Commission and others, Carl N. Craig, State Tax Collector, appeals. On motion to dismiss appeal. Motion to dismiss appeal sustained.

Motion to dismiss appeal sustained. Motion overruled.

E. R Holmes, Jr., Assistant Attorney-General, for appellee, State Highway Commission, on motion to dismiss.

Section 168, Code of 1930, is not applicable here for the reason that the case is still pending on the docket of the circuit court of Hinds county, and this appeal therefrom is premature as it is not an appeal from a final judgment of the court. The order quashing the writ of garnishment is an interlocutory order as to the defendants named therein only. The act of the lower court in quashing the writ of garnishment and discharging the defendants, State Highway Commission, State Auditor, and State Treasurer, was in accordance with the holding of this court in Dollman v. Moore, 70 Miss 267; Dollar v. Allen, etc., 78 Miss. 274; McBain v. Rodgers, 29 So. 91, and other cases.

This court has held in the case of Martin Wunderlich v. State Highway Commission, 183 Miss. 428, that the Highway Department is liable on its highway contracts just as any individual or private corporation is liable on or for breach of a private contract. In this case, after the quashing of the writ of garnishment but not the quashing of the writ of attachment, the Highway Department, if it had not paid to the contractors the funds due them, when due, would have been liable in damages for breach of contract. Acting on the advice of this office, it paid over such funds to such contractors because Section 168 says that appeal shall preserve the attachment in full force where it is an appeal from a judgment rendered against plaintiff "discharging his attachment." The attachment was not discharged. The funds are no longer impounded. The Highway Department paid the amount as required by its contracts. The appeal is premature, and we think it should be dismissed.

W. E. Gore, of Jackson, for appellant, on motion to dismiss.

Section 168 of the Code of 1930 is relied on as authority supporting appellant's right to appeal, with the effect that "the attachment shall not be discharged, nor garnishees nor property released therefrom, by such judgment, but such appeal shall preserve the attachment in full force, to await the result of the appeal."

Appeals rest on statutory authority alone, except where the right rests on the constitution. Of the constitutional authority of the Legislature to grant the right, there can be no doubt. The power to grant appeals necessarily implies the power to prescribe both the conditions and the effect.

The attachment was discharged as to the garnishees by the judgment rendered by the circuit judge. By its very language, the statute forecloses any question whatever that the garnishees shall be discharged. So far as the garnishees are concerned, the judgment is final, for its language is that the "same hereby are quashed and this suit hereby is dismissed as to them and they are hereby discharged from answering further herein."

The return of the writ shows the principal defendant not found and does not show any levy on property. So far as the record shows, the lawsuit ended with the entry of the circuit judge's order. The only thing under the control of the circuit court was the money owing by the garnishees. Power over this vanished when the order was entered.

The correctness of the action of the circuit judge in dismissing the suit as to the garnishees is not here involved. That is meat for another day. Dollman v. Moore, Dollar v. Allen, and McBain v. Rodgers will have our attention in due time, that is, when this appeal is reached on the docket of this court.

Argued orally by W. E. Gore and H. H. Creekmore, for appellant, and by E. R. Holmes, Jr., for appellee.

McGehee, J., Smith, C. J., dissenting. McGowen, J., joins in this dissent.

OPINION

McGehee, J.

The motion is to dismiss the appeal herein granted from an order or a judgment of the circuit court of Hinds County quashing certain garnishments served upon the State Highway Commission, State Auditor, and State Treasurer, and dismissing the suit as to the garnishees, but wherein the court expressly declined to quash the writ of attachment against the principal defendant.

On September 18, 1940, the appellant, as State Tax Collector, filed an affidavit for an attachment against Barber Brothers Contracting Company, a foreign corporation, to enforce the collection of an alleged indebtedness from the said non-resident in favor of the state, and suggested therein that the garnishees above named had money and effects of the said foreign corporation in their hands and under their control; and prayed that writs of garnishment be issued against them. Thereupon a writ of attachment was immediately issued as prayed for against the estate, both real and personal, of the said Barber Brothers Contracting Company on the sole ground of its non-residence, and there was embodied in the writ the suggested garnishments. On the following day the process was served upon each of the garnishees and the return of the officer was accordingly made on the writ of attachment wherein the garnishment feature of the process was embodied, and he retained the writ in his possession to be executed on any estate, real or personal, that might be found in his county belonging to the principal defendant, Barber Brothers Contracting Company.

The circuit court was then in regular session, but this dual writ of attachment and garnishments was not returnable until the third Monday in February, 1941, since the suit was not filed in time to require an appearance at the term then in session. The garnishees, however, went before the court on September 28 and obtained a hearing, over the objection of the appellant, upon a motion filed only in their own behalf to dismiss the writ of attachment, quash the garnishments, and dismiss the suit insofar as they were concerned on the ground that the State Highway Commission is an agency of the state engaged in the carrying out of governmental functions and that neither the said commission nor the other state officials are subject to garnishment over their objection or otherwise. No ground for quashing the attachment was assigned in this motion, nor does any reason appear from the record for quashing the same since the affidavit...