Laurel Mills v. Ward

• Decision Date: 22 December 1924
• Docket Number: 24532
• Citation: 102 So. 263,137 Miss. 221
• Court: Mississippi Supreme Court
• Parties: LAUREL MILLS v. WARD. [*]

102 So. 263

137 Miss. 221

LAUREL MILLS v. WARD. ^[*]

No. 24532

Supreme Court of Mississippi

December 22, 1924

Division B

1 GARNISHMENT. Money paid to sheriff in satisfaction of execution subject to garnishment.

Money paid into the hands of a sheriff in satisfaction of an execution is subject to garnishment.

2. STATUTORY PROVISIONS.

Section 1, chapter 146, Laws of 1914 (section 1815, Hemingway's Code), provides that the proceeds of any judgment not exceeding ten thousand dollars, recovered by any person on account of personal injuries, shall inure to the party in whose favor such judgment shall be rendered free from all liabilities for the debts of the person injured.

3 EXEMPTIONS. Law providing that proceeds of judgment for personal injuries inure to party in whose favor rendered free from liability for debts applicable to residents and nonresidents.

This section is applicable to both residents and nonresidents of the state.

4. JUSTICES OF THE PEACE. Judgment in attachment suit for plaintiff affirmed on debt issue on appeal should be against both defendant and sureties on appeal bond.

Where in an attachment suit which originated in a justice of the peace court judgment was rendered in favor of the plaintiff both on the attachment and on the debt issue, and the defendant appealed, where judgment is rendered in favor of the plaintiff in the circuit court on the debt issue, this judgment should be both against the defendant and the sureties on his appeal bond.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second District, HON. R. S. HALL, Judge.

Action by the Laurel Mills against J. W. Ward. From a judgment for defendant, plaintiff appeals. Affirmed in part, reversed in part, and rendered.

Judgment affirmed in part, reversed in part and rendered.

W. S. Welch, for appellant.

It is well settled in this state that money in the hands of an officer who has collected the same by virtue of an execution, is subject to garnishment in a suit instituted by attachment against the plaintiff in execution. Burleson v. Milan, 56 Miss. 399.

As to appellee's second contention that the money was not subject to garnishment the statute is very plain that the exemptions embraced in chapter 28, Hemingway's Code, "shall be in favor of residents of this state." Section 1838. It is true that when the statute, embraced in chapter 146, Laws of 1914, was enacted by the legislature, there was not a clause reserving the exemption for residents of this state, but the statute was embraced in the chapter on exemptions in Hemingway's Code and section 1838 of that chapter reserves the exemptions embraced therein in favor of this state only and the Code was adopted by Act of the legislature (ch. 286, Laws of 1922). M. & O. R. R. v. Weiner, 49 Miss. 725.

It has always been the policy of the state of Mississippi to allow exemptions, both from taxation and attachment and garnishment, in favor of residents of the state only, and we submit that it was the intention of the legislature to allow the exemption of money collected for personal injury, only in favor of residents.

Was the appellant precluded from recovery by reason of testimony about the advance in the former hearing? Hart v. Chemical National Bank, 27 So. 926; Laurel Mills v. J. W. Ward, 99 So. 11.

Clearly the claim of appellant against the appellee for the advances totaling ninety dollars could not have been pleaded had appellant attempted to do so. And an issue is not adjudicated unless it is involved in the record. It was not presented by the pleadings nor could it have been, and therefore was not adjudicated. Scully v. Lowenstein & Bro., 56 Miss. 652.

Collins & Collins, for appellee.

Did the lower court err in holding that the money in question was exempt from attachment and garnishment? It is admitted by all parties that the money in question, and now held by the sheriff, Luther Hill, is the proceeds of the judgment for personal injuries to appellee. But counsel for appellant contends that because of the fact that appellee is a non-resident of the state that he is not entitled to the benefits of the statute exempting the proceeds of a judgment for personal injuries from attachment and garnishment for his debts. Exemption laws are highly favored by the law. Bank of Gulfport et al. v. O'Neal, 86 Miss. 45, 38 So. 638. Dreyfus v. Barton, 98 Miss. 758, 54 So. 254; Laurel v. Turner, 84 Miss. 432, 36 So. 531. We believe that upon a strict consideration of the statutes this court will decide that the lower court was right in holding that the money in question in this case was exempt from attachment or garnishment. Chapter 146, Laws of 1914; Section 1815, Hemingway's Code.

It is our contention that the legislature in enacting chapter 286, Laws of 1922, did not undertake to adopt Hemingway's Code as the Code of Mississippi, but merely adopted it as a compilation of the statutes of the state. There is a great deal of difference between a compilation of the statutes of the state, and adopting it as the Code of the state. Ga. Central Railroad Co. v. State, 104 Ga. 831, 31 So. 531, 42 L. R. A. 518.

OPINION

SYKES, P.J.

This cause was by agreement tried before the circuit judge without a jury, upon the following agreed statement of facts:

"It is agreed by and between the plaintiff and the defendant that the following is a true and correct statement of facts in the above styled case, now pending in the circuit court of the second judicial district of Jones county, Miss., and that the said case may be tried by the presiding judge on the said statement, a jury being expressly waived:

"That the plaintiff is a corporation organized under the laws of the state of Mississippi, and domiciled at Laurel, Miss., and the defendant is a nonresident of the state of Mississippi that the defendant was an employee of the plaintiff, and lived in the city of Laurel, Miss., at one time, and while so employed he suffered a personal injury; that he sued the plaintiff on account of the said injury, and obtained a judgment against the plaintiff for the said injury in the sum of one thousand dollars; that at the time he procured the said judgment he was a nonresident of the state that, after the defendant suffered the said injury, he made application to the plaintiff, and procured advances from the plaintiff as money loaned in the sum of ninety dollars; that the said sum has not been paid to the plaintiff by the defendant; that when the defendant's case against the plaintiff for damages, which resulted in a verdict of one thousand dollars, as aforesaid, was tried, there was testimony before the jury on the trial of the said case introduced by Laurel Mills, with reference to the said advances; that the Laurel Mills did not plead the said advances, totaling the said sum of $ as an off-set, nor undertake to reduce damages by instructions of the court to the jury; that the said advances were made by said Laurel Mills to said Ward as follows: . . . that the said Ward is a resident citizen of the state of South Carolina; that the said judgment of one thousand dollars against the said Laurel Mills and in favor of the said J. W. Ward was appealed from by the plaintiff, Laurel Mills, to the supreme court, with a supersedeas, and was affirmed by said court and a mandate from said court sent in said case to the circuit court of Jones county, Miss.; that in this court the said cause was styled J. W. Ward v. Laurel Mills, No. 2017; that in the supreme court of the state of Mississippi the said case was styled Laurel Mills v. Ward, No. 23644, the opinion of the said case being reported in Atterbury & Nichols v. Hopkins & Schrenk, 122 Mo.App. 172, 99 S.W. 11; that on the trial of this case reference to the record in said case No. 23644 in the supreme court of the state of Mississippi may be made as often as is necessary, and any pertinent and competent fact appearing from the...