Laurel, City v. Turner

• Decision Date: 12 May 1902
• Citation: 31 So. 965,80 Miss. 530
• Court: Mississippi Supreme Court
• Parties: LAUREL, CITY OF, v. WILLIAM D. TURNER

31 So. 965

80 Miss. 530

LAUREL, CITY OF, v. WILLIAM D. TURNER

Supreme Court of Mississippi

May 12, 1902

March 1902

FROM the circuit court of Jones county. HON. JOHN R. ENOCHS Judge.

Turner appellee, was plaintiff in the court below; the city of Laurel, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The opinion states the case.

Affirmed.

Shannon & Street and T. G. McCallum, for appellant.

We think the judgment rendered in the garnishment proceedings in the justice court against the city of Laurel, against A. J Lyon & Co., was merely irregular and not void. The justice court has jurisdiction of the city of Laurel and the filing of the objection to the garnishment did not vitiate the jurisdiction. This court, in Dollman v. Moore, 70 Miss. 267, speaking of that case, says: "That the trustee of Yazoo City made no objection to submitting to complainant's decree, and the objection, not being jurisdictional, cannot be made by the appellants." Therefore, in this case, the objection of the city of Laurel to answering to the garnishment, not being an objection to the jurisdiction, as stated in the above case, the judgment rendered against it is merely irregular and could have been corrected on an appeal to the circuit court. This court says, in Moore v. Ware, 51 Miss. 206: "That the judgment of a court having jurisdiction of the subject matter and parties is conclusive so long as not reversed; and cannot be attacked collaterally, however irregular and erroneous." Also see Parisot v. Green, 46 Miss. 747. Appellants do not contend that a municipality can be garnished against its wishes, but we do contend that where a municipality has been garnisheed, and pleads its exemption, a judgment adverse to it is simply erroneous, and not void. Such a judgment cannot be attacked collaterally.

We also insist that the city of Laurel has authority to waive its right of exemption from garnishment process, and did so by paying an irregular judgment rendered against it, as garnishee, in favor of A. J. Lyon & Co. We submit that the appellee, Turner, had no right to make objection. We think in this suit he occupied the same position as a claimant would in garnishment proceeding, and it has been held that a claimant in a garnishment proceeding cannot question the right of garnishment for mere irregularity, where such irregularity has been waived by the garnishee. Merrill et al. v. Vaughan, 24 So. R., 580; Reynolds v. Collins, 78 Ala. 94.

We submit that the court erred in excluding evidence showing that appellee appeared before the municipal board and employed counsel to file pleas in behalf of the city, and that it was negligence on the part of the appellee, and counsel employed by him, that a proper appeal was not taken to the next term of the circuit court. We think all this evidence should have been brought out since the garnishment proceeding was gone into. By appellee's own evidence the city had paid out the amount sued for on a judgment that is valid and binding and not subject to collateral attack. Appellee and the court below proceeded on the erroneous theory that the judgment against the city was void for want of jurisdiction. The judgment may be erroneous on the ground that it was contrary to public policy to render the judgment, but the courts of this state have jurisdiction in cases of this kind, and the defendant in such cases cannot object if the city does not, the objection not being jurisdictional. Dollman v. Moore, 70 Miss. 267; Dollar v. Commission Co., 78 Miss. 274.

Harper & Potter, for appellee.

The satisfaction of the judgment in the garnishment proceedings is no defense to this action, because the garnishee wholly failed to set up the exemption of Turner as a person working for wages, and Turner can now, as he has done, set up this exemption against the city of Laurel. Any other rule would put it in the power of a garnishee to completely defeat the beneficent purpose of the exemption laws, by simply failing to plead such exemption of the defendant, and then paying the judgment, and setting it up in bar of defendant's right of recovery. No court can afford to tolerate the evasion of so beneficent a statute by such a proceeding. Fortunately we are not without authority directly on this point. Missouri Pas. R. R. Co. v. Whipsker, 8 L. R. A., 392.

Section 2139, code 1892, provides for the method of procedure in such cases, and the garnishee acts at his peril if he fails to take advantage of its provisions, Wright v. C., B. & Q. R. R. Co., 19 Neb. 175; C. & A. R. R. Co. v. Ragland, 84 Ill. 373; T. H. & I. R. R. Co. v. Baker, 122 Ind. 433; Lock v. Johnson, 36 Me. 464; Walker v. Hinze, 16 Ill.App. 326; Parker v. Wilson, 61 Vt. 116; U. P. R. R. Co. v. Smersh, 22 Neb. 751; Railroad Co. v. Smith, 70 Miss. 344.

Buckley & Halsell, on the same side.

In the lower court the appellee introduced the justice's judgment and the plea of the city to show that the latter objected to being garnisheed. When the city was garnisheed and the appellee's salary, the meagre sum of ten dollars a month tied up, the city objected and promptly filed its objection, but the...