Dollman v. Moore

• Decision Date: 21 November 1892
• Citation: 70 Miss. 267,12 So. 23
• Court: Mississippi Supreme Court
• Parties: CHARLES DOLLMAN ET AL. v. J. C. MOORE

12 So. 23

70 Miss. 267

CHARLES DOLLMAN ET AL. v. J. C. MOORE

Supreme Court of Mississippi

November 21, 1892

October 1892

FROM the chancery court of Yazoo county, HON. H. C. CONN Chancellor.

The case is stated in the opinion.

Affirmed.

Williams & Williams, for appellants,

Filed a lengthy brief and argument, discussing all the assignments of error, and as to the matters passed on by the court, making the following points, and citing the following authorities:

The board of school-trustees is a public corporation, exercising a part of the sovereignty of the state, and having public duties and functions, and, as such, it is not embraced in the word "person" in the statute. It is not subject to garnishment. In support of this view, see 8 Md. 95; 6 Vt 121; 26 Ala. 498; 36 Ib., 624; 45 Ill. 1; 9 Heis., 511; 45 Ill. 134; 4 Minn. 184; 54 Miss. 363; 10 Am. St. Rep., 196; 23 Am. Rep., 667; 21 Ib., 277; 12 Conn. 404; 29 Penn., 173; 15 Wis. 193; 40 Miss. 67; 8 Mass. 247; 7 Ib., 246; 11 Conn. 123; 3 Bax. (Tenn.), 368; Freeman on Executions, § 133. The rule is impliedly recognized in Board Supervisors v. Gillen, 59 Miss. 198. See also 25 Ill. 596; 7 Mon., 439; 12 Gill & J., 399; 26 Wis. 449; 49 Ib., 449; 14 Ib., 291; 37 Ga. 240; 8 Am. & Eng. Enc. L., 1135.

The objection that the municipality is not subject to garnishment, is jurisdictional, and it cannot be waived. The garnishee cannot, without his debtor's consent, subject his property to garnishment by waiver. 33 Am. Rep., 422. The exemption from garnishment is granted from public necessity, and no one can waive it. 8 Am. & Eng. Enc. L., 1135, notes 4 and 5, and cases cited. It would be unjust to put it in the power of a garnishee to prefer certain of the creditors by its waiver. Besides, there is no express waiver in this case, and the courts will not presume one.

Calhoon & Green, on the same side.

School-boards are not garnishable. 8 Am. & Eng. Enc. L., 1135; Drake on Attach., § 516; Wade on Attach., § 419; Board v. Gillen, 59 Miss. 198. The question is simple and sharp, and the authorities compiled and easily accessible. We refer especially to 54 Ind. 501; 54 Ga. 399; 52 Vt. 204.

The weight of authority is that the exemption from garnishment cannot be waived. 8 Am. & Eng. Enc. L., 1135; Drake on Attach., § 516.

Henry & Richardson and Campbell & Hudson, for appellee.

Section 1832, code 1880, confers the remedy by attachment in chancery against non-resident debtors and persons indebted to them in this state. Section 1898 of the code, defining the remedy, provides for the attachment "of the indebtedness of the defendant in this state to such non-resident." The terms could hardly be broader. They embrace artificial, as well as natural persons. The rules for construing the code require this. Code 1880, § 13.

Our supreme court has uniformly construed statutes of this kind favorably to the creditors, even holding, against the weight of authority, that an officer holding money under execution, may be garnished. Burleson v. Milan, 56 Miss. 399.

As a deduction from all the authorities, we contend as follows:

1. A public corporation may be garnished, especially when the debtor is a third person, not the officer or agent of the corporation.

2. The true test whether a corporation may be garnished is whether it may be sued.

3. If a garnishment will not lie at law, it will lie by way of creditors' bill on attachment in equity.

4. If there is an exemption from garnishment, it is a personal one, and must be pleaded by the corporation itself, not by the debtor.

In support of the several propositions contended for, see 38 N.J.L. 88; Dillon, Mun. Corp. , § 65; 4 Clark (Iowa), 302; Drake on Attach., § 516; 20 Conn. 416; Wade on Attach., § 345; Waples on Attach., § 234; 10 R.I. 285; 5 N.H. 13; 15 Ohio St. 462; 121 Mass. 380; 49 Mo. 568; 21 Ib., 239; 11 Ib., 59; 10 Mon., 515, S.C. 24 Am. St. Rep., 67.

If a non-resident debtor cannot be garnished in cases like this, merely because his debtor is a public corporation, the resident creditor will be practically without remedy. It is significant that the case, 54 Ind. 501, relied on by appellant, distinguishes the Missouri case, last cited above, by the fact that it was a bill in equity to subject a debt from the corporation.

Argued orally by S. S. Calhoon, for appellant.

OPINION

COOPER, J.

The appellee exhibited his bill in the chancery court of Yazoo county against Charles Dollman, a non-resident of this state, and against the board of school-trustees of Yazoo City.

The bill alleges that Dollman is indebted to complainant for work and labor done by him in and about the erection of a school-building, which Dollman contracted to build, and did build, under a contract with said board of trustees, and that said board of trustees is indebted to Dollman in a sum in excess of the debt due complainant. The prayer is that the board of trustees may be directed to pay to complainant, out of the funds in its hands due to Dollman, the amount he owes complainant.

The board of trustees answered, admitting an indebtedness to Dollman, but stating that the building had not been finished, and that it could not be known what amount, if any, would remain in its hands. Subsequently the board filed another answer, stating that the building had been finished, and the board had in its hands the sum of $ 1,500 as balance due on the building, but that since its former answer had been filed the board had received notice that Dollman had transferred his right to the fund to the Cole Manufacturing Company, which company it asked might be made a party to the proceedings.

The Cole Manufacturing Company was admitted to defend, but, since it is not disputed that its claim to the fund was by virtue of an assignment made by Dollman after process served in the original proceeding, its answer need not be considered.

Dollman demurred to the bill, and, that being overruled, he answered, and the cause proceeded to final hearing, when a decree was made in favor of complainant, from which decree Dollman and the Cole Manufacturing Company appeal.

The defense made by Dollman to the proceeding rests upon three grounds:

1. That the proceeding is a statutory attachment in chancery, and that the demand sought to be subjected is not within the terms of the statute.

2. That it is against public policy to permit governmental agencies to be garnished, or drawn into controversies with private persons touching matters with which they have no concern, and that this immunity is not a mere privilege which may be waived by the body-politic, but is jurisdictional in character, and may be insisted on by any party to the suit, and at any stage of the proceedings.

3. A denial of the debt sought to be collected.

It is evident that the proceeding was instituted and prosecuted as one under our statute regulating attachments in chancery, and, if it be true that it can be supported only by the statute, it must fail if the statute has no application because of the character of the debt sought to be subjected to the complainant's demand. The provision of the code providing for attachments in chancery against non-residents is as follows:

"The said chancery courts shall have jurisdiction of attachment suits against any non-resident, absent or absconding debtor, who has lands or tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor." Code of 1880, § 1832.

It is not pretended that the defendant has lands or tenements in this state. The statutory jurisdiction must, therefore, rest upon that clause of the statute giving attachment against a non-resident, absent or absconding "debtor, and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor."

Is a municipal corporation a "person" within the meaning of the statute?

Primarily, the word "person" means a natural person, but when used in statutes, its signification is so controlled by the context that it maybe said to rest upon it. Ordinarily, it may be supposed that in general statutes the word is intended to include both natural and artificial persons. Lord Blackburn in Pharmaceutical Society v. London, etc., Association, 5 App. D.C. 857.

The word may or may not include the state or its subdivisions. 18 Am. & Eng. Enc. L., title Person, p. 403, note 2, where many authorities are collected.

Whether a state, or a municipality or other corporation exercising a subdivision of its sovereignty, is included by the terms of a statute--not being expressly named--must be determined by a consideration of the subject-matter of the statute, its purpose and effect. When the statute primarily refers to matters foreign to the ordinary functions of public corporations, and imposes burdens, duties or liabilities upon them, without any corresponding benefits, the inference must be that it was not the legislative purpose that such corporations should be subject to its provisions. The inconvenience which would arise from subjecting these bodies, created for the performance of public functions, to be proceeded against as garnishees at law and in equity, and when a mere neglect to respond to the summons would subject the public represented by such corporation to the burden of a judgment for the demand of the attaching creditor, is strongly persuasive against such construction of the statute as would include these bodies. We are, therefore, of opinion that the garnishee in this case was not a "person" having in his hands effects of, or indebted to, the non-resident defendant, and that the proceeding, in so far as it was based...