Wineman v. Clover Farms Dairy
| Decision Date | 08 January 1934 |
| Docket Number | 30650 |
| Citation | 168 Miss. 583,151 So. 749 |
| Court | Mississippi Supreme Court |
| Parties | WINEMAN v. CLOVER FARMS DAIRY |
Suggestion Of Error Overruled January 29, 1934.
(In Banc.)
1 GARNISHMENT.
Trial court may allow judgment creditor to join issue on third party claim after expiration of term to which garnishment was returnable and at which claim was filed (Code 1930, sections 1853, 3427).
2. APPEAL AND ERROR.
Trial court's decision allowing judgment creditor to join issue on third party claim after term to which garnishment is returnable is reviewable only in case of abuse of discretion (Code 1930, sections 1853, 3427).
3 GARNISHMENT.
Contents of safety deposit box rented by judgment debtor in garnishee bank held subject to garnishment as property in "possession or control" of garnishee bank (Code 1930, section 1843).
4 GARNISHMENT.
Debtor renting safety deposit box in garnishee bank may obtain court order protecting his right of privacy as to personal papers of confidential nature contained within box (Code 1930, section 1843).
APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.
Action by the Clover Farms Dairy against Mrs. A. E. Wineman, in which plaintiff recovered judgment and, had writ of garnishment issued and served on the First National Bank of Greenville as garnishee. Plaintiff recovered judgment after joinder of issue with Imelda Wineman, third party claimant, and said claimant appeals. Affirmed.
Affirmed.
Zelma W. Price, of Greenville, for appellant.
Our construction of the statute, section 1853, Code of 1930, is that should the plaintiff desire to contest the claim propounded by the claimant, he has the right so to do, and, in that event, he must do so at the return term of the writ of garnishment, attachment, or execution, or any proceeding where the rights of property is being tried, and failing to so join issue at the return term of the writ, he has defaulted or waived his right to join issue, and this right cannot be protected or restored by the court. It is the holding of this court in construing this statute that even a contest on an answer in garnishment must be made at the return term of the writ of garnishment, and not after.
Mechanics and Insurance Company v. Butler, 115 Miss. 476, 76 So. 521; Hattiesburg Trust Co. v. Hood, 97 Miss. 340, 52 So. 790; Sears v. Gunter, 39 Miss. 338; Beford & Co. v. Adams Machine Company, 93 Miss. 537, 47 So. 429; White v. Roach, 98 Miss. 309, 53 So. 622; Section 3427, Code of 1930.
The statutory mode of procedure in garnishment is a substitute for the remedy of interpleader in equity.
Kellogg v. Freeman, 50 Miss. 127.
Plaintiff is not obliged to contest the issue between himself and a claimant who has become a party, but his failure to do so constitutes an abandonment of the garnishment proceedings.
28 C. J., page 384, section 607.
While it is true that in a garnishment proceeding property is not seized in the sense that it is taken into the manual possession of the officer by whom the writ is executed, nevertheless it is to all intents and purposes an attachment, being the process by which money and goods due a judgment or attachment debtor by third persons are attached.
First National Bank of Hattiesburg v. Ellison, 99 So. 573.
We submit that under Section 3428 of the Code of 1930 the burden of proof rests upon the plaintiff in execution to first show that the property levied on is liable to the execution, and this must be done before the case can be submitted to the jury on the claimant's issue.
Trice v. Walker, 71 Miss. 968, 15 So. 787; Scruggs v. Electric Paint & Varnish Company, 140 Miss. 615, 105 So. 745.
Where the statute expressly subjects deposits of certain kinds of property to garnishment, a safety depositary of such property may be charged as garnishee. Conversely, where the same statute specifies what bailments of other kinds of property render the bailee liable to garnishee process and does not include safety deposits, a safety depositary of such other kinds of property cannot be charged.
28 C. J., page 86, section 105.
We respectfully submit that the garnishee in the instant case had no such possession and control over whatever property there might have been in the lock box in question as is contemplated by the law in order to bind the same to the payment of the judgment of plaintiff. This seems to be a case where the true test as to whether the contents of a safety deposit box, when such contents are unknown to the garnishee, not under its control, nor in his possession, either actually or constructively, are subject to the writ, when it is beyond the garnishee's power to furnish any information whatsoever for the court to intelligently act upon.
20 Cyc., pages 1010, 1011; Section 1845, Code of 1930; Falkner v. State, 98 So. 691.
In the garnishee's answer it specifically states that it had no control over the contents of the safety deposit box and did not know what the contents were.
To warrant the garnishment of property or effects, they must be in the garnishee's possession or under his control.
10 Standard Enc. of Proc., page 392.
Liability on the part of the garnishee is never presumed, but must be affirmatively shown.
10 Standard Enc. of Proc., page 395.
A safe-deposit company having safe-deposit vaults, safes and strong boxes for the safe-keeping of valuable articles and property of all kinds is a warehousing and not a banking corporation.
A sealed package as to the contents of which the garnishee is ignorant is not subject to garnishment where the court is without power to take appropriate steps to ascertain its contents.
28 C. J., page 151, section 189; Bottom v. Clarke, 7 Cush. (Mass.) 487; Gregg v. Hilson, 8 Phila. (Pa.) 91; Gregg v. Nilson, 1 Leg. Gaz. R. 128.
We submit that the court, in the instant case, had no power under the garnishment statute to compel the locked box in question to be brought into court by the garnishee so as to ascertain what it contained, and if it contained anything to whom the contents belonged, and, finally, whether such contents, if any, were subject to garnishment in the hands of the garnishee.
Wynn, Hafter & Lake, of Greenville, for appellant.
We submit that when a person other than the garnishee lays claim to the thing garnished, then the whole procedure passes out from a mere warning to the garnishee then owing the debt or possessing the property sought to be subjected, and the garnishment proceedings are then and there checked and held in abeyance until the trial of the right of property has been determined as provided by Section 3427, Code of 1930.
Percy Bell, of Belzoni, for appellee.
The contest was on the claim of a third person. The provisions of Section 1854 do not apply in the instant case and the cases cited by appellant are not in point for that reason. Section 1853 of the Code of 1930 governs.
The question of the right of a garnishment to reach a lock box had not arisen in the State of Mississippi, but under the facts as testified to by Mr. Carnahan, the cases of Trowbridge v. Spinning, 62 P. 125; Tillinghast v. Johnson, 82 A. 788; and West Cache Sugar Co. v. Hendrickson, 190 P. 946, indicate the procedure adopted.
The question as to whether or not Mrs. Wineman's testimony as to the ownership of the property in question was to be accepted or not was for the jury and they decided most promptly against her.
In the case of property placed in a safety deposit box, garnishment against the bank, which is the lessor of the box, is a proper remedy, by the weight of authority, though a slight conflict must be admitted.
12 R. C. L., page 805; 41 L. R. A. (N. S.), page 764; 11 A. L. R., page 225; Hooper v. Day, 19 Me. 56, 36 Am. Dec. 734; Farmers Savings Bank v. Roth, 191. N.W. 987, 195 Iowa 185.
The contents of safety deposit boxes are subject to garnishment or attachment.
West Cache Sugar Co. v. Hendrickson, 190 P. 946, 56 Utah 327, 11 A. L. R. 216; Tillinghast v. Johnson, 34 R. I. 136, 41 L. R. A. (N. S.) 764, 82 A. 788, Ann. Cas. 1914A, 960; Washington Loan & T. Co. v. Susquehanna Coal Co., 26 App. D. C. 149; Trowbridge v. Spinning, 23 Wash. 48, 54 L. R. A. 204, 83 Am. St. Rep. 806, 62 P. 125; National Safe Deposit Co. v. Stead, 95 N.E. 973, Ann. Cas. 1912B, 430; United States v. Graff, 67 Barb. 305, 4 Hun. 634; 12 R. C. L., page 805; Rabiste v. Southern, 254 S.W. 167; Lockwood v. Manhattan Co., 28 A.D. 68, 50 N.Y.S. 974; Cussen v. South California Savings Bank, 133 Cal. 534, 65 P. 1099, 85 Am. St. Rep. 221; Roberts v. Safe Deposit Co., 123 N.Y. 57, 25 N.E. 294, 9 L. R. A. 438, 20 Am. St. Rep. 718; Safe Deposit Co. v. Pollock, 85 Pa. 391, 27 Am. Rep. 660; 41 L. R. A. (N. S.), page 764.
Argued orally by Zelma W. Price and Jerome S. Hafter, for appellant, and by Percy Bell, for appellee.
On October 12, 1931, appellee obtained judgment against Mrs. A E. Wineman for nine hundred and ninety-nine dollars. Thereafter, on June 15, 1932, a writ of garnishment was issued under said judgment and was served on the First National Bank of Greenville, garnishee. At the return term of the writ, the garnishee answered admitting an indebtedness to Mrs. Wineman in the sum of ninety-three dollars and thirty-six cents, money on deposit, and further answered as follows: ...
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