Tyler v. Akerman

• Decision Date: 12 May 1923
• Citation: 85 Fla. 485,96 So. 838
• Parties: TYLER v. AKERMAN et al. (CITY OF COCOA, Garnishee).
• Court: Florida Supreme Court

96 So. 838

85 Fla. 485

TYLER v. AKERMAN et al. (CITY OF COCOA, Garnishee).

Florida Supreme Court

May 12, 1923

Error to Circuit Court, Brevard County; James W. Perkins, Judge.

Proceeding between Franklind W. Tyler and B. Akerman and another with the City of Cocoa as garnishee. To a judgment quashing a writ of garnishment as to the City of Cocoa, Tyler brings error.

Affirmed.

Ellis and Browne, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Garnishment statute making corporations liable held inapplicable to municipal corporations; 'corporation.' The statute (Gen. St. 1920, § 3431), in providing that 'Every person who shall have brought a suit to recover a debt or shall have recovered a judgment in any suit in any court of this state against any person, natural or corporate, shall have a right to a writ of garnishment, in the manner hereinafter provided to subject any indebtedness due to the defendant by a third person, and any goods, money, chattels or effects of the defendants in the hands, possession or control of a third person. The officers, agents and employés of any companies or corporations shall be, as regards such companies or corporations, third persons, and as such shall be subject to garnishment after judgment against such companies or corporations,' manifests no legislative intent to make the writ of garnishment applicable to municipalities. [Ed Note.--For other definitions, see Words and Phrases, First and Second Series, Corporation.]

COUNSEL Butt & Collins, of Melbourne, for plaintiff in error.

Gus C Edwards, of Cocoa, for defendants in error.

OPINION

WHITFIELD, J.

This writ of error was taken to a judgment quashing a writ of garnishment as to the municipality.

The statute provides that----

'Every person who shall have brought a suit to recover a debt or shall have recovered a judgment in any suit in any court of this state against any person, natural or corporate, shall have a right to a writ of garnishment, in the manner hereinafter provided, to subject any indebtedness due to the defendant by a third person, and any goods, money, chattels, or effects of the defendants in the hands, possession or control of a third person. The officers, agents and employés of any companies or corporations shall be, as regards such companies or corporations, third persons, and as such shall be subject to garnishment after judgment against such companies or corporations.' Section 3431, Rev. Gen. Stats. 1920.

By the terms of the statute is appears that there was no legislative intent to make the writ applicable to municipalities, and this is the general rule. See 28 C.J. 59; 12 R. C. L. p. 843; Welch Lumber Co. v. Carter Bros. & Bird, 78 W.Va. 11, 88 S.E. 1034, 2 A. L. R. 1583; 5 McQuillam on Mun. Corp. § 2517; Switzer v. City of Wellington, 40 Kan. 250, 19 P. 620, 10 Am. St. Rep. 196; Duval County v. Charleston Lumber & Mfg. Co., 45 Fla. 256, 33 So. 531, 60 L. R. A. 549, 3 Ann. Cas. 174; Michigan Lumber & Mfg. Co. v. Duval County, 45 Fla. 472, 34 So. 245; 20 Cyc. 989; 10 Ency. of Proc. 399; 14 Am. & Eng. Ency. Law (2d Ed.) 812; 1 Dillon on Mun. Corp. (5th Ed.) §§ 249, 428.

There should be an affirmance of the judgment.

TAYLOR, C.J., concurs.

CONCURRING

WEST, J. (concurring specially).

There are cases to the contrary, but the prevailing rule is to the effect that garnishment statutes making corporations liable to garnishee process are not applicable to municipal corporations. Mobile v. Rowland, 26 Ala. 498; Porter & Blair Hdw. Co. v. Perdue, 105 Ala. 293, 16 So. 713, 53 Am. St. Rep. 124; Skewes v. Tennessee Coal, etc., Co., 124 Ala. 629, 27 So. 435, 82 Am. St. Rep. 214; McLellan v. Young, 54 Ga. 399, 21 Am. Rep. 276; Leake v. Lacey, 95 Ga. 747, 22 S.E. 655, 51 Am. St. Rep. 112; Memphis v. Laski, 9 Heisk (Tenn.) 511, 24 Am. Rep. 327; Switzer v. Wellington, 40 Kan. 250, 19 P. 620, 10 Am. St. Rep. 196; Donohue v. Newburyport, 211 Mass. 561, 98 N.E. 1081, Ann. Cas. 1913B, 742, and note; Merwin v. Chicago, 45 Ill. 133, 92 Am. Dec. 204; Buffham v. Racine, 26 Wis. 449; Flood v. Libby, 38 Wash. 366, 80 P. 533, 107 Am. St. Rep. 851; Vaughn v. Condon, 52 Cal.App. 713, 199 P. 545.

In Merwin v. Chicago, supra, the court said:

'A large and growing city like Chicago must constantly have hundreds of persons in its employment, and if the city cannot, at short intervals, make a settlement of these multitudinous accounts, but is liable to be drawn into court at the suit of every creditor of its numerous employees, it will not only be engaged in much expensive and vexatious litigation, in which it has no interest, but, if unable to safely pay its employees and contractors, it may lose the services of persons that may be of much value. We understand, however, the counsel for the appellant to concede, that money due municipal officers, agents or contractors, is not liable to the garnishment; but, it is insisted, if the city had been required to answer, the alleged indebtedness, in the present case, would not have fallen in either of these classes. But, in our opinion, the city should not be subjected to this species of litigation, no matter what may be the character of its indebtedness. If we hold it must answer in all these cases, and the exemption from liability be allowed to depend in each case upon the character of the indebtedness, we still leave it liable to a vast amount of litigation in which it has no interest, and obliged to spend the money of the people and the time of its officials in the management of matters wholly foreign to the object of its creation. A municipal corporation cannot be properly turned into an instrument or agency for the collection of private debts. It exists simply for the public welfare, and cannot be required to consume the time of its officers or the money in its treasury in defending suits, in order that one private individual may the better collect a demand due from another. A private corporation must assume the same duties and liabilities as private individuals, since it is created for private purposes. But a municipal corporation is a part of the government. Its powers are held as a trust for the common good. It should be permitted to act only with reference to that object, and should not be subjected to duties, liabilities or expenditures, merely to promote private interest or private convenience.'

In Porter & Blair Hardware Co. v. Perdue, supra, the court said:

'Garnishment is a remedy or process of purely statutory creation and existence. There is no authority for a resort to it--courts are without jurisdiction to grant and effectuate it--except in cases and against parties which and who are within the terms of the statute. Public corporations, such as towns and cities, are not within the purview of the statute of garnishment in this state; they are held not to be subject to this process, unless included in unequivocal terms by the letter of the statute, on grounds of public policy, and our statute does not so include them.'

In Switzer v. Wellington, supra, the court said:

'It is contended that the phrase 'any person or corporation' includes a city of the second class: that the term 'corporation' is used without limitation, and embraces not only private but public corporations. We think that the term 'corporation' as used in this section has reference solely to private corporations organized for private purposes, and that it does not include municipal corporations. Cities are a part of the government, and should not be required to become involved in litigation in which they have no interest. This exemption from garnishee process is based entirely upon the ground of public policy. The reasons given by different courts are numerous; among others, that it would impair the usefulness and power of such corporations in the discharge of their functions; it would draw cities into litigation and occupy the time of their officers in expensive and vexatious suits in which they had no interest, and would compel them to expend the money of the people and the time of their officials on a matter wholly foreign to their creation; it might impede public improvements and the execution of contracts in which the public would be interested.'

The foregoing quotations are sufficient to illustrate the holdings upon this point in the various jurisdictions. It seems to me that the rule is predicated upon a sound basis.

DISSENTING

ELLIS J. (dissenting).

The only question presented by this record is whether a city may be charged as garnishee.

Tyler had brought an action against Akerman in the circuit court for Brevard county. The attorney for the plaintiff made an affidavit in garnishment stating that he had reason to believe that the city of Cocoa and W. F. Allen have in their possession or control moneys, goods, and chattels belonging to the defendant Akerman.

The...