Mechanics & Traders Ins. Co. v. Butler
| Decision Date | 08 October 1917 |
| Docket Number | 19352 |
| Citation | 115 Miss. 476,76 So. 521 |
| Parties | MECHANICS & TRADERS INS. CO. ET AL. v. BUTLER |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Judge.
Suit by G. W. Butler against Mrs. R. Freedman, with garnishment against the Mechanics & Traders Insurance Company and others. From a judgment for plaintiff against the garnishees, they appeal.
The facts are fully stated in the opinion of the court.
Judgment reversed, and cause remanded.
McLaurin & Arminstead, for appellant.
We think that this case is governed by section 2353 of the Code of 1906, and the decisions thereunder, and under similar statutes in previous codes. By reference to the above section of the code the court will see that it is made the duty of the attaching creditor, "at the term when the answer is filed," unless the court grants further time, to contest the answer of the garnishee in writing, specifying in what particular he believes the answer to be incorrect, and thereupon the court shall try the issue at once, unless cause be shown for a continuance, as to the truth of the issues. All of the answers of the appellants (garnishees in the court below) were filed at the return term of the circuit court of the second judicial district of Coahoma county, which was on the first Monday of March, 1915, and the first Monday of March, 1915, was the first day of March, 1915. This term of court lasted for twenty-four days. Acts of 1914, p. 324. No contest in writing was made of the several answers of these garnishees (appellants here) at this return term, nor was there any order of the court granting further time in which to contest the answers of these garnishees, and consequently there was no issue made up by the court to be tried at once as specified in the statute, and after this return term the garnishees' (appellants') answers became conclusive. Smither v. Fitch, 1 S. & M. 541; Williams v Jones, 42 Miss. 270; Gordon v. Moore, 62 Miss. 493-496; Hattiesburg Trust & Banking Co. v. Hood, 97 Miss. 340-344.
In the case of Williams v. Jones, 42 Miss. supra, it is said if it be left in reasonable doubt whether the garnishee is chargeable or not, he is entitled to judgment in his favor. These answers of these various appellants as garnishees having been filed at the return term of the garnishment writ, to wit: The March term, 1915, and no contest of said answers having been filed until July 19, 1915, after the May term of the circuit court of the second judicial district of Coahoma county had ended, made it unnecessary for these garnishees to give any further attention to these answers, as all of them denied any indebtedness to the defendant in attachment, except the German Fire Insurance Company and the Globe & Rutgers Fire Insurance Company, and they advised that prior writs of garnishment had been served upon them in the same case by creditors of the same debtor in a sister state, which were prior in time, and prior, therefore, in preference, and the court could not ignore these facts. No contest having been made at the return term of the answers, and no order having been granted by the court giving further time in which to file the contest, entitled each one of these garnishees to be discharged from any further liability, and any judgment rendered again t them after the return term, at which their answers were filed, was null and void. Ice Company v. Cook Well Co., 71 Miss. 886-888, 97 Miss. 343-344.
The answers of the German Fire Insurance Company and Globe & Rutgers Fire Insurance Company became then conclusive as given at the return term of the circuit court of the second judicial district of Coahoma, county, to wit: the March term 1915, but in these two answers an indebtedness was admitted, but the court was advised that it was subject to four other previous garnishments in the state of Tennessee and returnable on the 15th day of December, 1915. These garnishments in a sister state were ignored and judgment taken against these companies one year after they had filed their answers, to wit: on the 17th day of March, 1916, in violation of the constitutional protection to the full faith and credit required by the Constitution of the United States to be given to the records and judicial proceedings of a sister state. These prior judgments in the state of Tennessee doubtless consumed all of the amount admitted to be due and this would have been shown if the contest had been made at the return term as required by law, and we respectfully submit that the judgments as to the German Fire Insurance Company and the Globe & Rutgers Fire Insurance Company are void, not only for the reason that no contest was filed at the return term, by which their answers became conclusive, as did the answers of those other Insurance Companies among the appellants who denied any indebtedness whatever to the defendant in attachment, but the judgment against the German Fire Insurance Company and the Globe & Rutgers Fire Insurance Company are void, not only for the reason that no contest was filed at the return term, by which their answers became conclusive, as did the answer of those other insurance companies among the appellants who denied any indebtedness whatever to the default in attachment, but the judgment against the German Fire Insurance Company and the Globe & Rutgers Fire Insurance Company is void for another reason, and that is that the judgments taken were in violation of the full faith and credit clause of the Constitution of the United States above set forth, in that it ignored the garnishments that had been served upon these same garnishees in a sister state.
On the foregoing authorities, and for the reasons set forth, it is respectfully submitted that the judgments against the several appellants in this cause as garnishees are irregular and void, and that the same should be reversed and the garnishees finally discharged, as should have been the judgment of the lower court, and this court now rendering such judgment as the lower court ought to have rendered, under section 4919 of the Code of 1906, should, if we are correct in our contentions, render final judgment in the supreme court, discharging these garnishees from any liability whatever in this cause.
W. E. Denton, for appellee.
There were no defects in the proceedings and judgments against Mrs. S. R. Friedman, the defendant, in the lower court, under the well known statutes governing such proceedings; but if such defects existed they cannot be availed of by these garnishees unless they were such as to render the judgments against the defendant void. 20 Cyc., 1085; Fields v. McKinney, 60 Miss. 763; Saddler v. Prairie Lodge, 59 Miss. 572; Benson v. Halloway, 59 Miss. 358.
It is contended that appellee did not traverse the answer filed by appellants in the garnishment proceedings below within the time required by the statute. This is an appeal upon the naked record, and the facts which were known to the court below are not known to the supreme court; but if the delay complained of actually existed, and if the lower court did not extend the time for filing these traverses, appellants cannot now complain, because it was their duty to raise the point in the court below. They should have raised this point by making a motion to quash the writ of garnishment and if they had done so the merits of that controversy would now be before the supreme court. 20 Cyc. 1125.
The supreme court will not entertain questions which...
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