Davis v. L.N. Dantzler Lumber Co.

• Decision Date: 11 July 1921
• Docket Number: 2848
• Citation: 126 Miss. 812,89 So. 148
• Court: Mississippi Supreme Court
• Parties: DAVIS, Director General and Agent, et al v. L. N. DANTZLER LUMBER CO

89 So. 148

126 Miss. 812

DAVIS, Director General and Agent, et al v. L. N. DANTZLER LUMBER CO

No. 2848

Supreme Court of Mississippi

July 11, 1921

1 RAILROADS. Garnishment authorized by Federal Control Act, but in accordance with Transportation Act.

The provision in the Federal Control Act of March 21, 1918 (U. S Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, section 3115$3/4j), providing that "carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law.... Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law"---authorizes a suit against a carrier under government control for a cause of action arising before such control, and in such suit another carrier being operated under government control may be garnished, and a judgment be rendered against it for a debt it owes the principal defendant; but no execution can be rendered on such judgment against the director general of the government, but the judgment plaintiff must proceed in accordance with the Transportation Act of 1920 for collection of such judgment. In such suit the different transportation systems being operated by the government are treated as separate parties for the purposes of suit and accounting.

2 GARNISHMENT. Garnishee in attachment may not plead any defense personal to principal defendant.

In a suit by attachment against a nonresident defendant, who has only been served by publication, and who has entered no personal appearance, a garnishee in such suit may not plead for the principal defendant any defense which is personal to the defendant; and this is true, even though the garnishee is a carrier being operated by the United States government under the Transportation Act of March 21, 1918 (40 Statutes at Large, 451, Federal Stat. Ann. Supp. 1918, pp. 757, 762 [U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919 section 3115$3/4j]).

3. APPEAL AND ERROR. Supreme court may enter judgment which it is apparent of record should be entered.

Under section 4919, Code of 1906 (section 3195, Hemingway's Code), so providing, the supreme court on reversal of a case may, where the record makes it apparent what judgment should have been rendered in the court below, enter such judgment here. This should always be done, where there is no new fact to be determined, in furtherance of the policy of ending litigation.

HON. D. M. WATKINS, Chancellor.

APPEAL from chancery court of Harrison county, HON. D. M. WATKINS, Chancellor.

Suit by the L. N. Dantzler Lumber Company against James C. Davis, Director General and Agent, with the Mobile & Ohio Railroad Company and others as garnishees. Judgment for plaintiff, and the Director General appeals. Reversed, and modified judgment rendered.

Judgment reversed.

Carl Marshall and Fox & R. C. Beckett, for appellant.

White & Ford, for appellees.

OPINION

ETHRIDGE, J.

The appellee filed suit against the Texas & Pacific Railway Company as defendant, and various other railroad companies doing business and operating through the state of Mississippi as garnishees. Among the railroad companies so made defendants for the purpose of garnishments was the Mobile & Ohio Railroad Company. The suit grows out of an injury to a shipment of cattle from Ft. Worth, Tex., to a station in Harrison county, Miss., on the Gulf & Ship Island Railroad. Said bill of lading evidencing said shipment was dated October 10, 1917. During the time the cattle were in transit some of them died and others were injured, all of which it was alleged was the result of the negligence of the Texas & Pacific Railway Company. Suit was filed on March 25, 1918, in the chancery court of Harrison county, where the complainant lived, and in the county to which said cattle were consigned; garnishments were issued the same day, and served on the Mobile & Ohio Railroad Company the following day.

The Mobile & Ohio Railroad Company answered, admitting certain indebtedness, but set up that the moneys constituting said indebtedness came into its possession during the period in which the United States government had taken over and was operating the railroads for war purposes, and challenged the jurisdiction of the court to entertain jurisdiction, so as to render judgment against it, or to subject its funds to the demands of the complainant.

The court below dismissed the suit for want of jurisdiction; jurisdiction being acquired only by publication as to the Texas & Pacific Railway Company, and by service of writs of garnishment on the other railroad companies. From this judgment the complainant appealed to this court, and on March 3, 1919, the judgment of the court below was reversed and the cause remanded. A report of the case as it then stood appears in the case of L. N. Dantzler Lumber Co. v. Texas & Pacific Railway Co. et al., 119 Miss. 328, 80 So. 770, 4 A. L. R. 1669, where a full statement of the case as it then existed is set out. On the case being remanded, a supplemental bill was filed, and additional garnishments issued against the railroad companies doing business in the state of Mississippi; an additional garnishment being served on the Mobile & Ohio Railroad Company.

The Mobile & Ohio Railroad Company, as a corporation, answered the additional garnishment, denying that it was indebted to the Texas & Pacific Railway Company, and denying that it had any property belonging to the Texas & Pacific Railway Company in its possession at the time of the service of the garnishment or since, and setting up that the original garnishment was not served upon any agent of the Mobile & Ohio Railroad Company, a corporation, but that the process in the original suit was served on the agent of the Director General operating the Mobile & Ohio Railroad at said time, and that no service was had upon the Mobile & Ohio Railroad Company, or any agent of it acting in its corporate capacity. It further set up in its answer that on the 27th of October, 1916, the Texas & Pacific Railway Company was placed in the hands of receivers at the suit of certain parties set forth, and that when receivers were appointed in the equity side of the district court of the Western District of Louisiana, Monroe Division, the receivers were appointed for all property of every kind of the Texas & Pacific Railway Company, and that from said date until the 28th day of December, 1917, said railroad properties were operated by receivers, and not by the Texas & Pacific Railway Company, and that on the 28th day of December, 1917, the United States government took possession and control of the railroad properties owned by the Texas & Pacific Railway Company, along with the other transportation systems of the United States, and continuously operated said railroad properties, to the exclusion both of the Texas & Pacific Railway Company and of the said receivers since said time. It was further alleged in the answer of garnishment that, should any decree be rendered against the said Mobile & Ohio Railroad Company as a corporation for any sum of money whatever, respondent would be required to pay money that it did not owe and never owed, and for which it never received any consideration or compensation, that it would be to deprive it of the equal protection of the law, and would be a taking of its property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. It further answered that the President of the United States, in taking over the property of the Mobile & Ohio Railroad Company, along with other transportation systems, under the Act of March 21, 1918, known as the Federal Control Act (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, sections 3115 3-4a13115 3-4p), and the proclamations and orders of the Director General made in pursuance of said act of Congress, exempted the respondent from suit or judgment in this case.

The Director General filed an answer to the supplemental bill setting up that on the 26th day of December, 1917, the United States government took control of the transportation systems of the country, including the Mobile & Ohio Railroad Company and the Texas & Pacific Railway Company; that the President of the United States appointed a Director General to control and operate said railroads, and that the summons in the original garnishment directed to the sheriff of Lauderdale county, Miss., was served by said sheriff on an agent of the Director General, employed by the Director General in the operation of the Mobile & Ohio Railroad Company; that the Mobile & Ohio Railroad Company was not in possession or control of, and was not operating, its railroad, known as the Mobile & Ohio Railroad, in Mississippi or elsewhere, and had not been in such control since December 28, 1917, and that the agent of the Director General was not an agent in the employ of the Mobile & Ohio Railroad Company. It was further set forth in the said answer that the original answer herein was intended to be and was in fact the answer of the Director General of Railroads, and the indebtedness therein admitted to be due the Texas & Pacific Railway Company was an indebtedness due by the Director General to the Texas & Pacific Railway Company, and not an indebtedness due by the Mobile & Ohio Railroad Company, and that the employees who filed said answer were employees of the Director General, and not under the control of the Mobile & Ohio Railroad Company as a corporation. It was further alleged that after this original answer was filed, in order to avoid the confusion which existed in the minds of people, and especially of lawyers and courts, the Director General issued General...