Grace v. Pierce

• Decision Date: 13 February 1922
• Docket Number: 22271,22270
• Citation: 90 So. 590,127 Miss. 831
• Court: Mississippi Supreme Court
• Parties: GRACE v. PIERCE. SCRUGGS v. HERMAN et al

90 So. 590

127 Miss. 831

GRACE v. PIERCE.

SCRUGGS v. HERMAN et al

Nos. 22270, 22271

Supreme Court of Mississippi

February 13, 1922

1. APPEAL AND ERROR. Chancellor's decision on facts sustained unless manifestly wrong.

A chancellor's decision on the facts of a case will be sustained by the supreme court unless it be manifestly wrong.

2 JUDGMENT. Garnishment will not extend the lien of the judgment upo which it is founded.

A writ of garnishment issued within the seven-year statutory period of liimtation will not serve to extend the lien of the judgment upon which it is founded, as the judgment lien can only be extended by the filing of another suit before the expiration of seven years from the date of the rendition thereof.

3 GARNISHMENT. Proceedings require a valid judgment and fail when the judgment is extinguished by limitation statute.

A valid judgment is essential to the validity of a garnishment proceeding, and, when a judgment upon which a writ of garnishment is founded is extinguished by the bar of the statute of limitation, the garnishment procedings likewise fail.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Leflore county, HON. G. E. WILLIAMS Chancellor.

Suits between M. B. Grace and M. F. Pierce and between Mrs. Cora Scruggs and Robert Herman and another were decided in one opinion coming to the supreme court in one record, in which M. B. Grace appeals from a decree in the former, and Mrs. Cora Scruggs appeals from a decree in the latter. Decree in the former case affirmed. Decree in the latter case reversed, and judgment will be entered here for appellant.

Decree affirmed and reversed.

M. F. Pierce and Alfred Stoner, for appellant.

The judgments rendered by the justice of the peace courts in the year 1911, against Mr. Scruggs and in favor of Messrs. Robert Herman and George A. Wilson, were, at the time of the decision of the chancery court, and at the time of the filing of the interpleader barred by the statute of limitation and absolutely dead. There had been nothing to extend the life of those two judgments since their rendition.

In the Mississippi case of Moody & Williams v. Dye, 88 So. 332 it is said: "The garnishment proceedings grow out of and are incidental to the main judgment, and the judgment against a garnishee rests upon the main judgment which gives it life and when the main judgment is annulled the garnishment judgment must fall with it. The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and if there be no main judgment to enforce because of its annulment, then the we submit that no statute in our state runs against a is ended."

We submit that the above quotation directly upholds our contention. 20 Cyc., at p. 981; Dibrell v. Reely, 61 Miss. 217; 20 Cyc. 1005; 20 Cyc. 1007; Russell v. Clingan, 33 Miss. 535; Pigford Grocery Co. v. Wilder, (Miss.), 76 So. 745. In Columbus Insurance & Banking Co. v. Hirsh, 61 Miss. 74, it is said: "It is true that the service of the writ binds any money belonging to the defendant that he may receive between the time of service and the return day of the writ."

Some states hold, as above pointed out, that only the money due the judgment debtor at the time of service of the writ is bound, but none allow a recovery for any sum becoming due after the return day, and certainly not a recovery of money due after three years and after the debt had been sold by the judgment debtor and on a dead judgment too. 8 Am. & Ency. of Law, 1156, 1194; 14 Am. & Eng. Ency. of Law, 763.

We respectfully submit that the lower court erred in decreeing to the judgment creditors of Scruggs a sum of money that had been formerly assigned, and in upholding a garnishment against a claim for usury that became due three years after the return day of the writs of garnishment and also in giving life to the principal judgment that had been dead for three years.

Gardner, McBee & Gardner, for appellee.

It is argued in the brief of appellant that the garnishment proceeding is void as being barred by the Statute of Limitation. This contention cannot be maintained because from the record it appears that the judgment on which garnishment was issued was rendered in 1911, and that six years later and not seven years the writs of garnishment were issued. The garnishments were therefore at the time they were issued based on a judgment that was valid and not barred by any statutes of limitation.

It therefore follows that thereupon a suit was pending between the garnishee, the McShane Cotton Company and the plaintiffs Robert Herman and G. A. Wilson, Jr., and we submit that the statute in our state runs against a pending suit.

Garnishment as the proceeding is at present authorized by statute partakes of the nature of and is in all essentials a separate action or suit against the person garnished. Keen v. Smith, 75 P. 1065.

Garnishment is the institution of a suit by a creditor against the debtor of his debtor and is governed by the general rules applicable to other suits adapted to the relative situation of the parties. Roman v. Montgomery Iron Works, 47 So. 136.

Garnishment, as to the garnishee, is original process and must be executed as such. Jeffries v. Harvie, 38 Miss. 97; Roy v. Heard, 38 Miss. 544; Hoffman v. Simon, 52 Miss. 302.

It is contended that the writ of garnishment binds all sums that may be due up to the return day of the writ, but not thereafter. The case of Columbus Insurance & Banking Company v. Hirsh, 561 Miss. 74, means, we submit, that up to the time the answer is filed the garnishee must discover to the court what sums he owes. The writ is a statutory writ and commands the garnishee to answer, whether he be indebted to the defendant, or were so indebted at the time of the service of the writ on him, or have at any time since been so indebted. Section 1837 Hemingway's Code.

At the time the bill of interpleader was filed, which of course partook of the nature of an answer in garnishment the garnishee the McShane Cotton Company could not truthfully answer that it was not then indebted. Therefore we submit that any sums then in its hands were subject to the garnishment proceeding.

OPINION

COOK, J.

In the year 1914 A. J. Scruggs filed suit against the McShane Cotton Company seeking to recover usury that had been paid to said company. In September, 1919, a final decree was entered in favor of complainant, and an appeal from this decree was affirmed by this court. Thereafter the McShane Cotton Company filed a bill of interpleader against various parties alleging that the complainant was ready and anxious to pay the amount of the indebtedness under said decree to any person or persons entitled thereto, but that the various parties defendant were asserting claim to the amount of money due under the decree, and that it was necessary to stay the execution and to summon the several defendants to appear and propound their claims. The bill undertook to set forth in detail the claim of each defendant, and several of the defendants answered the bill and propounded their claims. The complainant paid the money into court and was discharged and upon the trial of the cause there were three separate decrees entered adjudicating the rights of the several defendants who had propounded their claims. There were appeals prosecuted from two of these decrees, and, while there is but one record filed in this court, these appeals are separately docketed, the first being No. 22270, and styled M. B. Grace v. M. F. Pierce, and the other being No. 22271, and...