Dollar v. Allen-West Commission Company

• Decision Date: 10 December 1900
• Citation: 78 Miss. 274,28 So. 876
• Court: Mississippi Supreme Court
• Parties: HOGAN T. DOLLAR ET AL. v. ALLEN-WEST COMMISSION COMPANY

28 So. 876

78 Miss. 274

HOGAN T. DOLLAR ET AL. v. ALLEN-WEST COMMISSION COMPANY

Supreme Court of Mississippi

December 10, 1900

October 1900

FROM the chancery court of Monroe county HON. HENRY L. MULDROW Chancellor.

The Allen-West Commission Company, appellee, was the complainant in the court below; Dollar and the county of Monroe appellants, were defendants there. The complainants showed that they had obtained a large judgment against Dollar, which they were unable to collect; that their debtor had constructed a bridge for the county, and for which there was due him a considerable sum, and the object of the bill (in its nature a garnishment proceeding) was to subject the sum due by the county to complainant's judgment. The defendants, Dollar and the county, demurred to the bill; the court below overruled the demurrer, and the defendants appealed to the supreme court.

Reversed and bill dismissed.

Monroe McClurg, attorney-general, for appellant, Monroe county.

In Dollman v. Moore, 70 Miss. 267 (270), the bill alleged "that said board of trustees is indebted to Dollman in a sum in excess of the debt due complainant, " and the trustee "answered, admitting an indebtedness, " failing to plead its exemption from garnishment; quite a different case from the one in hand. In that case the intimation is strong that, if the exemption had been set up it would have been sustained. The discussion of the powers of a court of equity to reach an equitable asset has no reference to the point here insisted upon, that the county could not be garnisheed, especially upon an unfinished contract the terms of which are not shown by the bill.

Walker & Tubb, for appellants.

Can a judgment creditor, by a creditor's bill in equity, reach a debt owing by the county to the judgment debtor and compel the board of supervisors, the county's representative, to answer in equity as garnishee, the board protesting and claiming its legal exemption from such process? The overwhelming weight of authority, well-nigh universal, answers, "No."

The nearest approach to appellee's view by this court, and the only authority relied upon or brought forward at the hearing, is the case of Dollman v. Moore, 70 Miss. 267, a case altogether different in its essential features from the case here presented. The board there did not appeal. It was ready to pay to the proper party, to either of the parties named by the court. The court said: "It is sufficient to say in this case that the trustees of Yazoo City made no objection to submitting to complainant's decree, and the objection, not being jurisdictional, cannot be made by the appellants." In the case at bar the board of supervisors objects to the proceeding against it, and claims its privilege of exemption from liability to be drawn into private litigation, in which it has no interest, and required to answer as garnishee either at law or in equity.

Appellee's counsel sought to draw his bill in accordance with the doctrine announced in Dollman's case by alleging "that to sequester and impound the claim owed by the county and subject it to the debt and judgment owed by defendant to complainant, would not hamper or restrict the county or its representative, the board of supervisors, in the performance of its public functions as complainant is informed and believes." But this is a mere conclusion of the pleader; no facts are alleged to support it. The very reason underlying and supporting all the authorities holding that municipal and other public corporations are not subject to be harrassed and brought into court in procedings of this kind, is that public policy will not suffer the official representatives of public corporations to be interfered with at all; not that they may be re quired to answer in a particular class of cases and not required to answer in another class. Mervin v. Chicago, 45 Ill. 133, s.c. 92 Am. Dec., 204; Summerfield v. Tyler, 37 L.R.A. 207; Addyston Pipe & Steel Co. v. Chicago, 170 Ill. 580, s.c. 44 L.R.A. 405; 14 Am. & Eng. Enc. L. (2d ed), pp. 812, 813, 814, and notes; Divine v. Harvie (Ky.), 18 Am. Dec., 194, notes 200-207; Hawthorne v. St. Louis, 11 Mo. 59, s.c. 47 Am. Dec., 141; Baltimore v. Root, 8 Md. 95, s.c. 63 Am. Dec., 692; Burnham v. Fond du Lac, 15 Wis. 193, s.c. 82 Am. Dec., 668; Mervin v. Chicago, 45 Ill. 133, s.c. 92 Am. Dec., 204; Hightower v. Slaton, 54 Ga. 108, s.c. 21 Am. Rep., 273; McLellan v. Young, 54 Ga. 399, s.c. 21 Am. Rep., 276; Memphis v. Laski, 9 Heis., 511, s.c. 24 Am. Rep., 327; Swotzer v. Wellington, 40 Kan. 250, s.c. 10 Am. St. Rep., 196; Leake v. Lacey, 95 Ga. 747, s.c. 51 Am. St. Rep., 112, and note 119; Hardware Co. v. Perdue, 105 Ala. 293, s.c. 53 Am. St. Rep., 124; Manufacturing Co. v. Krake, 66 Minn. 110, s.c. 51 Am. St. Rep., 395; Wallace v. Lawyer, 54 Ind. 501, s.c. 23 Am. Rep., 661; Merrell v. Campbell, 49 Wis. 535, s.c. 35 Am. Rep., 785.

W. H. Clifton, for appellee.

The scope and purpose of the bill is to subject an equitable asset of Dollar, a judgment debtor, to the payment of the judgment debt. The old rule in such cases, requiring the issuance of execution and return of nulla bona has been complied with. This has long been a favorite jurisdiction of chancery in Mississippi as well as...