Duval County v. Charleston Lumber & Mfg. Co.

• Decision Date: 27 January 1903
• Court: Florida Supreme Court
• Parties: DUVAL COUNTY v. CHARLESTON LUMBER & MFG. CO.

33 So. 531

45 Fla. 256

DUVAL COUNTY v. CHARLESTON LUMBER & MFG. CO.

Florida Supreme Court

January 27, 1903

In banc. Error to circuit court, Duval county; Rhydon M. Call Judge.

Action by the Charleston Lumber & Manufacturing Company against Duval county. Judgment for plaintiff. Defendant appeals. Reversed.

Carter J., dissenting.

Syllabus by the Court

SYLLABUS

1. Section 1666, Rev. St., as amended by chapter 4136, Laws Fla 1893, which provides: 'Every person who shall have brought a suit in any court of this state against any person natural or corporate, shall have a right to a writ of garnishment under the circumstances and in the manner hereinafter provided, to subject any indebtedness due to the defendant by a third person, and any goods, moneys, chattels or effects of the defendant in the hands, possession or control of a third person. The officers, agents and employés of any companies or corporations shall be, as regards such companies or corporations, third persons, and as such shall be subject to garnishment after judgment against such companies or corporations,'--does not authorize a writ of garnishment against a county; and where such writ has been issued, and judgment entered against a county, the judgment is void.

COUNSEL

Geo. U. Walker, for plaintiff in error.

Fleming & Fleming, for defendant in error.

OPINION

HOCKER J.

This cause was taken up and considered by Division B, and, there being a difference of opinion among the members thereof, the cause was referred to the court in banc for decision.

On July 6, 1896, the Charleston Lumber & Manufacturing Company filed its declaration in assumpsit against S. S. Leonard. A final judgment by default was entered against Leonard for $504.49 damages, and costs, $3.43.

On September 13, 1897, the Charleston Lumber & Manufacturing Company filed the affidavit of its attorney, F. P. Fleming, Jr., as a basis for garnishment, alleging a balance of $200 to be due, and a praecipe for garnishment to be directed to Duval county.

A writ of garnishment was issued, and duly served upon the chairman of the board of county commissioners of said county September 15, 1897.

On November 1, 1897, default in said garnishment proceedings was entered by the clerk against the county of Duval for want of appearance or answer.

On November 5, 1897, the clerk issued a writ of scire facias to said garnishee, notifying it that in the suit of the Charleston Lumber & Manufacturing Company against S. S. Leonard default had been entered against it as garnishee, and warning it to show cause December 6, 1897, why final judgment should not be entered upon said default, which writ was duly served on Duval county on the same day.

On December 6, 1897, judgment was rendered by the court and entered by the clerk, wherein and whereby the foregoing facts were recited, and a final judgment entered against Duval county as garnishee in the sum of $200.

On May 6, 1898, a writ of error from this court to the circuit court of Duval county was sued out returnable to the June term, 1898, of this court. The only error assigned is that the county of Duval is not subject to be garnished, as was done in this cause, and prays the reversal and annulment of said judgment.

Two questions are presented in the briefs of the respective parties: First, whether under the law of Florida a county is liable to be garnished; second, whether in this case the county of Duval, having permitted a default against itself for want of appearance and answer, can in this court for the first time challenge the judgment entered against it, and from which it appeals.

Section 1666 of the Revised Statutes, as amended by chapter 4136, Laws 1893, provides: 'Every person who shall have brought a suit in any court of this state against any person, natural or corporate, shall have a right to a writ of garnishment under the circumstances and in the manner hereinafter provided, to subject any indebtedness due to the defendant by a third person, and any goods, moneys, chattels or effects of the defendant in the hands, possession or control of a third person. The officers, agents and employés of any companies or corporations shall be, as regards such companies or corporations, third persons, and as such shall be subject to garnishment, after judgment against such companies or corporations.'

Section 1, c. 1, tit. 1, div. 1, of the Revised Statutes, provides: 'In determining the meaning of these Revised Statutes * * * the word 'person' may extend to and be applied to a corporation.'

In the case of Martin v. Townsend, 32 Fla. 318, 13 So. 887, in determining the mode in which a deed should be executed by county commissioners, this court used this language: 'Boards of county commissioners are quasi corporations, are their official duties and powers partake more of the characteristics of corporate acts and powers than those of mere trustees.' This language is to be understood in its relation to the matter in hand, which was the mode in which a deed should be executed by a board of county commissioners. In classifying corporations they are generally divided into public and private corporations. Says Beach on Public Corporations, vol. 1, sec. 2: 'The difference between strictly private and strictly public corporations is obvious and radical; the former being formed by the voluntary action of the corporation between whom there exists a contract whereby each subjects his interest, with certain restrictions, to the control of the corporate management for the accomplishment of the end for which the company was formed, and the latter not being in the same sense voluntary associations, and no contract existing between the members.' Again, in section 3, Id., public corporations 'are subdivided into municipal and public quasi corporations. Municipal corporations embrace incorporated cities, villages, and towns, which are full-fledged corporations with all the powers, duties, and liabilities incident to such a status, while public quasi corporations possess only a portion of the powers, duties, and liabilities of corporations. As an instance of the latter class may be mentioned counties, townships, overseers of the poor, school districts, and road districts.'

In section 4, Id., this author further discusses the generic differences between municipal and quasi public corporations, but in the latter part of section 5 he says: 'As popularly and loosely used, the term 'municipal corporation' frequently includes public quasi corporations, such as counties, school districts,' etc. It will be observed that in some of the cases hereinafter referred to the term 'municipal corporation' is used as embracing counties, and, so far as the points here under consideration are concerned, they apply the same principles of law to cities and counties.

It is stated in the text-books that by the weight of authority municipal corporations (including therein counties) are not subject to garnishee process, unless the right to so subject them is conferred by clearly expressed legislation. 2 Beach on Public Corporations, sections 1654 and 1655; 1 Dillon on Municipal Corporations, sec. 101, and note 1; Drake on Attachment, sec. 516. There is, however, a conflict of authority on this question, as will be seen from the foregoing authorities. The decisions on this question are very numerous, and a critical examination of each one of them would lead to great prolixity. The majority of the cases cited by Drake are against the right of garnishment. Of those cited by him in favor of the right, the case of Whidden v. Drake, 5 N. H. 13, is based on a statute which provides 'that when any corporations or body politic within this state shall be possessed of any money, goods, etc., of any debtor, such corporation or body politic may be summoned as trustee of such debtor,' etc.

In Connecticut it is held that the word 'corporation' embraced towns, and subjected them to garnishment process. Bray v. Town of Wallingford, 20 Conn. 416. In the case of Adams v. Tyler, Trustee, 121 Mass. 380, it is held that a county is chargeable with trustee process inasmuch as the statute makes a county a corporation for the purpose, among others, of suing and being sued, making contracts, etc.; and inasmuch as the Legislature had indicated its intent that conties should be subject to garnishee process by eliminating from the statute an exception in their favor as regards such process. In the case of Wales & Son v. City of Muscatine, 4 Iowa, 302, the liability of the town to garnishment is based on the theory that the word 'corporation' in the statute embraces towns, and no distinction is made between public and private corporations. In City of Laredo v. Nalle, 65 Tex. 359, it was held that, inasmuch as there was no statute exempting municipal corporations from garnishment process, the defendant was liable, taking into consideration the character of the debt garnished, it not being a salarly. In Kentucky it seems the salaries of state officers cannot be garnished, because the state cannot be sued, and a garnishment proceeding is a suit. But the salaries of city officers can be garnished because cities can be sued. Rodman v. Musselman, 12 Bush, 354, 23 Am. Rep. 724. In Waterbury v. Commissioners of Deer Lodge County, 10 Mont. 515, 20 P. 1002, 24 Am. St. Rep. 67, it was held that counties are subject to garnishment process because the statute makes all persons having in possession or under their control any credits' or personal property, etc., of a defendant liable to garnishment process, and that the word 'person' may be applied to bodies 'politic and corporate,' and that counties are bodies 'politic and corporate.' As sustaining the doctrine that a county or municipal corporation cannot...