Keathley v. Hancock, 38009

• Decision Date: 11 June 1951
• Docket Number: No. 38009,38009
• Citation: 53 So.2d 29,212 Miss. 1
• Parties: KEATHLEY v. HANCOCK.
• Court: Mississippi Supreme Court

Page 29

53 So.2d 29

212 Miss. 1

KEATHLEY v. HANCOCK.

No. 38009.

Supreme Court of Mississippi, Division B.

June 11, 1951.

Guy Mitchell, Sr. & Jr., Tupelo, Ely B. Mitchell, Corinth, for appellant.

Cunningham & Cunningham, Booneville, for appellee.

ROBERDS, Presiding Judge.

This appeal involves the correctness of the action of the trial court in striking the answer of the Express Company, garnishee, and rendition of judgment by default against that Company and against Keathley, under the circumstances now set out.

Mrs. Hancock, as plaintiff, asserted in her declaration that she became ill from eating deleterious pies prepared and sold by Keathley to the general public. The ground of liability was breach of an implied warranty that the food was fit for human consumption. The pies were prepared by Keathley in Memphis, Tennessee, the domicile of Keathley's place of business, and of which City he was a resident citizen. Plaintiff was a resident of Prentiss County, Mississippi. She ate the pie and became ill in that County. She instituted this attachment proceeding for damages against Keathley as a nonresident of Mississippi under Section 2679, Miss. Code 1942, and suggested in writing that the Express Company, also a nonresident but doing business and having agents in this State, be garnished under Section 2798 of said Code. A writ of attachment issued against Keathley and a writ of garnishment issued to the Express Company. The sheriff returned he could not find Keathley personally, or any property belonging to him, in Prentiss County, but that he had served a copy of the garnishment upon the Express Company. Publication was made for Keathley. The Express Company answered that it had no effects or property of Keathley's in its possession or under its control, was not indebted to him, and that it did not know of any other person so indebted to, or in possession of property or effects of, Keathley.

On August 1, 1949, the return day of the attachment publication, Keathley appeared specially and moved the dismissal of the proceedings against him for lack of jurisdiction.

On August 10, 1949, Mrs. Hancock filed a written contest of the answer of the garnishee and prayed that an issue be made up for that purpose. She said she was not then prepared to make the contest and asked that the matter be continued to the next term of court, which was done.

On September 21, 1949, Mrs. Hancock filed interrogatories to the Express Company as a nonresident defendant under Section 1712, Code of 1942. The Express Company answered the interrogatories. Mrs. Hancock being dissatisfied with the answers propounded other interrogatories to the Express Company on January 26, 1950. On February 13, 1950, the Express Company moved to strike the interrogatories theretofor propounded to it and the answers it had made thereto on the grounds (1) it was not such a party defendant as was contemplated under Section 1712, (2) that the relation between it and Keathley was that of agent and principal and not that of debtor and creditor, and (3) to properly answer the interrogatories would require an audit of over eight hundred offices, imposing unreasonable burden and expense upon it as garnishee. On February 13, 1950, Mrs. Hancock moved to strike the answer of the garnishee on the ground it had failed to make proper ansfer's to that interrogatorie At this stage, and under date of February 24, 1950, Mrs. Hancock moved to amend her declaration so as to sue for $3,000 instead of $225, as originally named in the declaration, and increase her attachment bond from $500 to $6,000. On the same day an order was granted by the court permitting such amendments. That action will be discussed later. Also, on that day, the Express Company filed amended answers to the interrogatories and it also moved the court to suppress and strike certain of the answers it had already made to the questions Mrs. Hancock had propounded. On May 23, 1950, the trial judge took all the foregoing matters under advisement. The case then came on for hearing August 7, 1950, a day of the regular term; whereupon, Keathley moved the dismissal of the suit on the grounds (a) the court had no jurisdiction, (b) that no property of Keathley's had been seized within the jurisdiction, of the court, (c) that the garnishee had denied it was indebted to, or had property of, Keathley, and that (d) the Express Company had answered its only relation to Keathley was that of carrier and f. o. b. collector for goods transported by it, which was not a debt within the garnishment statute of Mississippi. On August 18, 1950, the court entered an order striking the answer of the garnishee, and awarding judgment against it in favor of Mrs. Hancock for $3,000 but order stay of execution on the judgment until she had procured judgment against Keathley. On August 19, 1950, default judgment was taken against Keathley as to liability; on the same day a writ of inquiry issued for assessment of the damage for a jury, which was done, the jury, by its verdict, fixing the amount at $3,000; whereupon judgment was entered against the Express Company for $3,000.

Appellants first urge that the court erred in striking the answer of the garnishee. In determining the action it should take in this regard the trial court considered both the answer of the garnishee and also its answers to the interrogatories. The answer to the writ of garnishment was in statutory form simply saying it had no effects or money of Keathley in its possession, was not indebted to him, and knew of no other person in such possession or so indebted. As stated, Mrs. Hancock filed a contest to this answer and asked that an issue be made up to try the contest, but no issue was made up. Mrs. Hancock propounded the first interrogatories to the Express Company. The answers thereto stated that between May 21, 1949, date of service of the writ of garnishment, and August 1, 1949, the return date thereof, its connection with Keathley was that of a carrier of the food products of Keathley and a c. o. d. collector for the price thereof upon delivery by it to purchasers in the states of Arkansas, Tennessee and Mississippi, and that the money so collected had been remitted by it to Keathley. These interrogatories did not ask for the number of such shipments, nor for the amount of the collections, nor did the answers thereto give that information. The Express Company stated its books were open for inspection and audit by plaintiff and it was ready to give her any further information it could as to the nature of the business being transacted between it and Keathley. Not being satisfied with these answers Mrs. Hancock propounded the second set of interrogatories to the Express Company. These, to a great extent, repeated the former questions and answers, and then asked for dated of shipments, names of consignees and amounts of c. o. d. collections. The first interrogatories were filed September 21, 1949. The answers made were filed January 25 thereafter. The additional interrogatories were filed January 26, 1950. On February 13, 1950, before answering the second interrogatories, the Express Company moved 'to suppress the deposition in this case taken by the plaintiff', taking the position (1) the court had no jurisdiction to require it to furnish information as to its business with Keathley in Arkansas and Tennessee, nor in the State of Mississippi outside the County of Prentiss, where the action was pending; (2) that it would place upon the garnishee an unreasonable burden and expense to require it to audit its 866 offices in said three states to ascertain the desired information; (3) that it had offered plaintiff the privilege of examining and auditing all of its records, and (4) repeated that its relation to Keathley was that of a common carrier with the additional contract to collect the c. o. d. charges and remit to Keathley; that there was no debt, and, therefore, it was not subject to garnishment. On the same day Mrs. Hancock filed a motion to strike the answer of the garnishee and for judgment against it by default under said Section 1712. The record does not disclose which motion was first filed, but neither was then acted upon.

On February 24, 1950, the Express Company filed answers to the additional interrogatories. It again raised the legal questions invoked in its motion to suppress the first answers, above detailed; said it did not know the number of c. o. d. shipments it had received from Keathley; could not furnish the information within the time allowed; that to do so would entail unreasonable expense; offered its books and records for inspection by Mrs. Hancock, and stated that its accounting office was at Chattanooga, Tennessee, where 'its records with respect to actual money collected and disbursed in this area was kept * * *'.

On February 24, 1950, the Express Company filed a motion to strike the questions calling for the names, number, post-office addresses of the consignees of such shipments, and amount collected from each, raising the same question above set out, with the additional contentions (1) to require the information would violate its rights under the due process clause of the Constitution of the United States, (2) would be an unwarranted interference with interstate commerce, and again offered its books and records for inspection and examination by plaintiff.

It appears, although we do not find it in the record, that Mrs. Hancock filed another motion for time to contest the proposed garnishment issue, in which she alleged the Express Company, within the period involved, had received for transportation and...