Willenbrock v. Brown, 45884
| Decision Date | 12 October 1970 |
| Docket Number | No. 45884,45884 |
| Citation | 239 So.2d 922 |
| Parties | John WILLENBROCK and Joseph E. Wight, Jr. v. Carl BROWN. |
| Court | Mississippi Supreme Court |
Jack Parsons, Wiggins, Edward J. Currie, Jr., Hattiesburg, for appellants.
R. L. Calhoun, Hattiesburg, William E. Andrews, Jr., Purvis, for appellee.
Appellee, Carl Brown, recovered a default judgment in the Circuit Court of Pearl River County in the amount of $1,907 against appellant John Willenbrock. The judgment, not having been satisfied, a writ of garnishment was issued against Lumberton State Bank. The bank answered the garnishment and admitted that it was indebted to Willenbrock in the sum of $23.57 by virtue of account number 331-195-8 and which it is admitted was subject to garnishment. The bank also admitted that it was indebted to Willenbrock by virtue of an account number 332-868-9, an account set up on its books as 'John Willenbrock, Special Trust,' subject to checks being drawn by Mr. or Mrs. John Willenbrock and at the time of the service of the writ contained the sum of $1,623.93. The answer also alleged that it had been informed prior to the service of the writ by Willenbrock and appellant Joseph E. Wight, Jr., that the account was a trust account being held for the benefit of Wight. The bank tendered the amount of the account into court and asked that it be allowed to interplead the parties claiming the money. The court entered an order allowing the bank to interplead the parties and directed that summons issue for all parties claiming any interest in the funds.
Appellant Willenbrock filed a motion to quash the garnishment proceedings and to set aside the default judgment. The basis for this motion is that the return on the process revealed that it was served on Willenbrock on August 16, 1967, while the record showed that the suit was not filed until August 17, 1967. Therefore, the summons served prior to the filing of the suit was void and of no effect and that the court did not have jurisdiction to enter the default judgment.
Appellee Carl Brown answered this motion and set up that the record in this cause shows that the declaration was filed on August 17, 1967, and that process was issued for the defendant on the same day and that process was actually served on the defendant on August 17, 1967, and that the return on the process was erroneous. The answer also alleged that the true facts would be shown on the hearing and that the sheriff would be requested to amend his return to show the correct date of the process.
Appellant Wight by sworn answer set up that the funds being held by Willenbrock in account number 332-868-9 belonged to him and that at the time the account was opened the bank was informed that Wight and his wife were estranged and at her instance a receiver had been appointed to take possession of all of his assets and that it was his desire to deposit these funds in a special trust account in the name of Willenbrock so that the funds could not be reached by attachments or garnishment by his wife.
Appellee Brown responded to the answer of Wight and denied Wight was the true owner of the funds and as an additional defense alleged that Wight was not entitled to any relief because by his sworn answer he showed that he was attempting to perpetrate a fraud upon his wife.
The trial court overruled a motion of Willenbrock to quash the writ of garnishment and set aside the judgment and from this ruling Willenbrock appealed.
A hearing was had on the claim of Wight to the funds and after hearing the evidence, the court held that Wight by his own testimony was guilty of perpetrating a fraud on his wife and if he would defraud one person he would defraud another and for this reason he was not entitled to recover the funds. A judgment was entered in accordance with the findings of the court and from this judgment Wight has appealed.
Appellant Willenbrock assigns as error the action of the trial court in overruling his motion to quash the garnishment proceeding and to vacate or set aside the default judgment for the want of jurisdiction. It is asserted that the court arbitrarily overruled the motion without hearing any evidence. The only thing in the record to indicate whether the court heard testimony on the motion is the order overruling the motion. The order is as follows:
This cause this day coming on to be heard on Motion of John Willenbrock, Defendant herein, to quash Garnishment Proceedings and to set aside...
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Atterberry v. State
...Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648 (Miss.1991). The defendant cites Willenbrock v. Brown, 239 So.2d 922 (Miss.1970), for the proposition that the presumption that an officer's return of process is correct can be shown to be untrue by either ......
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Denson v. State, 96-KA-01290 COA.
...court to understand the matters relied upon for reversal of the lower court's judgment. Shelton, 279 So.2d at 644; Willenbrock v. Brown, 239 So.2d 922, 924 (Miss.1970). ¶ 19. Although our jurisdiction provides wide latitude in probing matters affecting a witness's credibility, we emphasize ......
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Journey v. Long
...ever applied for the judgment, then this Court would necessarily presume that no such application existed. See Willenbrock v. Brown, 239 So.2d 922, 925 (Miss.1970) (Court will not consider anything on appeal that does not appear in record). However, the Court cannot profess blindness to tha......
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Boyd v. State, 96-CA-00270-COA.
...that the decision of the trial court should be reversed. See Denson, 746 So.2d at (¶ 18); Shelton, 279 So.2d at 644; Willenbrock v. Brown, 239 So.2d 922, 924 (Miss.1970). We cannot entertain Boyd's affidavit as it clearly was not presented to the lower court as evidence. Moreover, Boyd's af......