Wright v. Southern Ry. Co.
| Decision Date | 17 April 1906 |
| Citation | 53 S.E. 831,141 N.C. 164 |
| Parties | WRIGHT v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Ward, Judge.
Action by J. L. Wright against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. New trial.
The plaintiff brought the action before a justice of the peace to recover $133.27 alleged to be due by the defendant as wages for services rendered. The defendant pleaded what is called the "general issue," that is, it denied the indebtedness. The justice gave judgment against the defendant, and it appealed. In the superior court it further pleaded payment, set-off, and counterclaim. The defendant did not, at the trial, deny that it was at one time indebted to the plaintiff in the said amount, but relied, in support of its general denial and the added pleas, upon judgments in two suits, one in a justice's court of Knox county, Tenn entitled "Brewing Co. v. Luther Wright & Co.," of which firm plaintiff was a member and proved that plaintiff in this action, who was a defendant in that one, was personally served with process, the court having jurisdiction of the action, and that judgment was therein rendered against him for $85.10, and thereupon a writ of garnishment was sued out, and served on the defendant in this case, Southern Railway Company, after a return of nulla bona to the execution which had been issued on the judgment. Defendant appeared in obedience to the process issued against it and answered by admitting an indebtedness to the plaintiff of $136.29 and alleged that of this sum $52.93 was subject to a prior garnishment issued in another suit against it. Judgment was duly entered against defendant, under the garnishment for $83.99, which it afterwards paid. The other suit was brought by the plaintiff against the Knoxville Livery & Stock Company in the court of chancery of the same county, in which the defendant filed a cross-bill and upon the said cross-bill obtained judgment against the plaintiff for $37. Upon a return of nulla bona to the execution issued upon that judgment process of garnishment was sued out against the defendant in this case, Southern Railway Company, and judgment, after appearance and answer, was duly entered against it for $48.25. The defendant railway company, as garnishee, paid on this judgment $5,190, which was $3.65 more than should have been collected on the principal judgment or the garnishment. This excess was paid by the clerk of the court to the plaintiff, J. L. Wright, who was substantially the defendant in the judgment. So far as appeared in the court below, the proceedings in both suits were conducted regularly. The judge held that the payments thus made by the defendant did not constitute a good and valid defense or support the pleas of payment, set-off, or counterclaim except as to the sum of $3.65 received by the plaintiff from the clerk of the chancery court and so instructed the jury and directed them to answer the issue accordingly. There was a verdict in favor of the plaintiff for $133.27, being the amount claimed by him, and judgment thereon. Defendant excepted and appealed.
King & Kimball, for appellant.
Taylor & Scales, for appellee.
WALKER J. (after stating the case).
The plaintiff contends that the payments made by the defendant under the garnishment proceedings cannot be set up to defeat his recovery in this action because he was not notified of the process of garnishment. It does not affirmatively appear whether he was or not, but for the sake of the argument we will assume that he was not so notified. He was personally served with the summons in the principal action and (nothing else appearing) we think that was quite sufficient to bind him by the judgment in the garnishment, not that he is precluded by it from showing that the defendant did not owe him more than was adjudged to be due in that proceeding, but the latter is protected by the payment from answering again to the plaintiff for the same debt. It is not pretended that the statute of Tennessee requires that he should be notified. In the absence of any countervailing evidence, we must presume that the case proceeded regularly and according to the course and practice of the court of the state in which it was pending and that consequently all proper steps were taken to charge the garnishee. This is the well-settled rule, where it appears that the court had jurisdiction of the subject-matter and the parties. Rood on Garnishment, § 214; Grier v Rhyne, 67 N.C. 338; McLane v. Moore, 51 N.C 520. No question is made in this case as to the jurisdiction of either of the courts which rendered the two judgments, and there is no irregularity or other defect in the proceedings alleged except the failure to notify the defendant in them, who is plaintiff in this action, of the garnishment. This objection is not tenable. One reason for requiring such a notice is to enable the defendant to make his defense, if he has any, to the original action and thereby prevent his being called upon to pay the debt twice. This, we think, is a most just and reasonable rule but in all cases where it has been applied, the defendant, not the garnishee, had been brought in by publication, by constructive and not by personal service, and the reason for the rule would perhaps confine it to such cases, unless there is some special defense to the garnishment or some right that could be asserted thereunder. The defendant's counsel rely on Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023, and that is the only decision cited to us to sustain the point. The court does say in that case: ...
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