Welch Lumber Co. v. Carter Bros.

• Decision Date: 21 March 1916
• Citation: 78 W.Va. 11
• Court: West Virginia Supreme Court
• Parties: Welch Lumber Co. v. Carter Bros. & Bird et als.

78 W.Va. 11

Welch Lumber Co.

v.Carter Bros. & Bird et als.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1916.

Decided March 21, 1916.

1. Garnishment Persons Subject Public Corporations.

Municipal corporations or other public corporations, on principles of public policy, are not liable to garnishee process. (p. 12).

2. Process Persons Subject Public Corporations "Person."

Statutes relating to attachment and garnishment, and making corporations, as other persons, amenable to legal process, and defining the word "person" to include corporations, are generally construed not to include public corporations. (p. 13).

3. Garnishment Persons Subject Public Corporations.

Exemption of such corporations from process of garnishment is not a personal privilege which may be waived by them, by appearance and answer, but one based on principles of public policy and which cannot be waived. (p. 13).

Error to Circuit Court, McDowell County.

Action by the Welch Lumber Company against Carter Bros. & Bird and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Anderson, Strother, Hughes & Curd, for plaintiff in error.

G. W. Howard, and Sanders, Crockett & Kee, for defendants in error.

Miller, Judge:

Plaintiff, a judgment creditor of defendants, in two several judgments obtained in Mercer County, sued out writs of fieri facias thereon, and by proper proceedings in McDowell County, caused the Board of Education of Brown's Creek District, in that county, to be summoned in each case to answer as garnishee, the suggestion, that it was indebted to the defendants, and that by virtue of the said writs of fieri facias, and the lien thereof, there was a liability upon it for the amounts thereof.

The Board of Education, duly summoned, appeared and answered, admitting liability to the judgment debtor as suggested, and the Union Bank and Trust Company, and E. E. Carter, claimants of the funds or liability so proceeded against, by summons served upon them, were required to appear before the circuit court of McDowell County, and state the nature of their claim and maintain or relinquish the same, and in the meantime further proceedings in said actions were stayed.

By consent and agreement of all the parties the two cases were heard together. The claimants of the money in the hands of the garnishee moved the court to quash the said suggestions, and so far as the record shows interposed no other plea or defense thereto.

At a subsequent term thereof, held on July 31, 1915, the circuit court pronounced the judgment now complained of, that said motion to quash said suggestions be sustained and the same dismissed, assigning therein as a ground therefor that "said Board of Education of Brown's Creek District of McDowell County, is not subject to garnishment," and adjudging also that the defendants recover from plaintiff their costs in and about their defense to said suggestions in that behalf expended, including an attorney's fee of ten dollars in each case, and it is to this judgment that the Welch Lumber Company obtained the present writ of error.

Two points of error are assigned and relied on: First, the quashing of the suggestions in each case; second, the judgment for costs in favor of the defendants in said actions.

On the first point it is contended that the Board of Edu cation, summoned as garnishee, was alone entitled to challenge its liability to garnishee process, and not having specifically done so the claimants of the money owing by it to the judgment debtors and in its hands were not entitled to be heard on motions to quash the process against them, and especially so without complying with the process against them, to appear and state the nature of their claims and maintain or relinquish them.

By the great weight of authority, a municipal corporation, or other public corporation, on principles of public policy, is not liable to garnishee process. 1 Dillon on Mun. Corp., (5th ed.) section 249, and cases cited; Waples on Attachment and Garnishment, 313; 2 Wade on Attachment, section 345. But the authorities are by no means uniform on this question. Among the cases cited to the contrary are Portsmouth Gas Co. v. Sanford, 97 Va. 124, and Hicks v. Roanoke Brick Co., 94 Va. 741. Many of the cases referred...