Opinion
No. 31931.
October 5, 1936.
1. GARNISHMENT.
A "garnishment," in one aspect, is method for enforcing judgment, but is not an "execution," since property is not actually seized under it.
2. COSTS.
Clerk of Supreme Court is not authorized to issue writs of garnishment on judgments by Supreme Court for costs incurred on appeal thereto (Code 1930, sec. 3014).
3. COSTS.
Clerk of trial court held without authority to issue writ of garnishment for collection of costs incurred on appeal to Supreme Court (Code 1930, secs. 3014, 3032, 3406, 3376, 3408; Const. 1890, sec. 146).
Proceedings by the State against Ouida Keeton, wherein writs of garnishment were issued against several parties. On motion to quash the writs of garnishment. Motion sustained.
C.S. Street, of Laurel, for garnishee, Eastman-Gardiner Co.
Heidelberg Roberts, of Hattiesburg, for garnishee, Citizens Bank of Hattiesburg.
J.A. Covington, Jr., of Meridian, for garnishee, U.S.F. G. Co.
Shannon Schauber, of Laurel, for garnishee, First Nat. Bank of Laurel, Miss. Deavours Hilbun, of Laurel, for garnishee, Commercial National Bank Trust Co. of Laurel.
Welch Cooper, of Laurel, for Eloise Keeton.
J.R. Buchanan, of Laurel, for H.H. Fuller, administrator de bonis non of estate of Mrs. Daisy Keeton, deceased, garnishee.
A garnishment, as to the garnishee, is an original suit to collect a debt, and as such is not an action which the Supreme Court has power to consider.
Jefferies v. Harvie, 38 Miss. 97; Planters Ins. Co. v. Carmer, 47 Miss. 200; Brown v. Carraway, 47 Miss. 668.
A proceeding under a bill of interpleader made in an answer to a garnishment writ is just a trial of right of property or claimant's issue. This court, in the case of State v. Booker, 61 Miss. 16, held that the Supreme Court has no power to try any issue of fact not necessary to be decided for the disposition of an appeal pending in said court.
We respectfully submit, with deference, that the contest of the ownership of this fund of ten thousand dollars, should be tried in the chancery court of the second judicial district of Jones county, Mississippi, the forum which has already acquired full and complete jurisdiction of the subject matter and the parties, and the bill of interpleader filed in this court be dismissed.
This garnishee, with deference, in support of his motion to quash the writ of garnishment issued against him in this cause, would respectfully show the court that, as to him, this proceeding is an original suit, and, as such, with deference, submits that this court has no jurisdiction to determine the issues.
Jefferies v. Harvie, 38 Miss. 97; section 146, Constitution of 1890; section 3361, Code of 1930; Planters Ins. Co. v. Cramer, 47 Miss. 200.
It may be said that the state in this matter had the right to institute garnishment proceedings to enforce its judgment, but it should have done this, we respectfully submit, with deference, in a forum wherein the jurisdiction is placed by the constitution and by statute, and one where a party innocent and under no obligation to it might by proper procedure secure to himself the trial by jury to which he is entitled, with right to appeal. The statute provides a remedy for the collection of costs by execution, which might have been followed in this case.
Eastman Gardiner Naval Stores Co. v. Gregory, 139 So. 626, 169 Miss. 782.
We respectfully submit, with deference, that a garnishment proceeding is not in aid of the appellate powers of the Supreme Court in enforcing its orders.
Stevens Currie, of Hattiesburg, for sureties, David F. McRae and Mrs. Maude K. McRae.
Execution and garnishment may issue for costs of appeal in the Supreme Court, and may be issued by the Supreme Court clerk, or by the clerk of the circuit court in whose office a judgment therefor may be enrolled.
Sections 689, 1838, 3014, 3032, 3406 and 3408, Code of 1930.
The case of Eastman-Gardiner Naval Store Co. v. Gregory, 139 So. 626, is far from holding that the Supreme Court is powerless to enforce by garnishment a judgment for the costs accrued on the appeal to the Supreme Court. In the instant case, the controversy is over the costs of appeal only, the costs accruing in this court and the transcript filed in this court, and this court has both inherent and statutory authority to enforce its judgment for costs incurred in this court. However, we find that in this case the judgment was certified to the court below, was enrolled and the process was issued by the circuit clerk upon the enrollment of the judgment in the office of the circuit clerk of the second judicial district of Jones county, and it is this process that is in question. The question arises whether or not, under the sections of the Code above referred to, the process should have been returnable to this court, or should have been made returnable to the circuit court.
Is this court powerless to try an issue tendered with respect to the ownership of the fund garnished, when perhaps that may be the only means of enforcing payment of its judgment for appeal costs? It appears in this case that an indebtedness to the principal defendant is the only thing caught by the process issued to enforce the judgment, and conceivably the state or its usee would miss its only opportunity to enforce the judgment, if the funds garnished cannot be subjected in this court to the satisfaction of the judgment for costs.
Planters' Ins. Co. v. Cramer, 47 Miss. 200.
If the writ of garnishment was erroneously made returnable to this court, and if it should have been made returnable to the circuit court, then this court has the right to order the process sent to the proper office and court for further disposition. If the process is erroneous in being made returnable to this court, it is not void, but would be amendable if filed in the circuit court, and the process therefore should not be quashed.
The appellee appealed to this court from a judgment of conviction in a criminal case. The judgment was affirmed ( 167 So. 68, 175 Miss. 631), and a judgment was rendered against her and the sureties on her appeal bond for the costs of the appeal incurred in this court. This judgment was enrolled in the office of the clerk of the circuit court of Jones county.
On a suggestion by the district attorney of Jones county in which the criminal case originated, the clerk of the circuit court of that county issued writs of garnishment on the judgment against several parties commanding them to appear in this court and make the required statutory answers to the writs. These writs were served and various answers have been filed thereto, some admitting, and others denying, any indebtedness to the judgment debtor; one admits such an indebtedness, but states that other parties claim the fund, and prays that they be summoned to propound their claims thereto.
A motion has been made to quash the writs of garnishment, and another to quash the request for an interpleader.
We will assume that, if writs of garnishment may be issued upon a judgment rendered by the Supreme Court for the costs incurred on an appeal thereto, these writs of garnishment were properly issued. The question then is, Will a writ of garnishment lie upon such a judgment rendered by the Supreme Court?
Section 3014, Code 1930, provides that the clerk of the Supreme Court may issue executions for costs accrued in that court. Section 3408 contains a similar provision.
A garnishment, in one aspect, is a method for enforcing a judgment, but is not an execution, for no property is actually seized under it. 28 C.J. 19.
As to the garnishee, the writ of garnishment "appears to be purely original process; for it is the means by which he is summoned into court to answer to his indebtedness to the defendant in the judgment. It has the same effect upon him, if the proceedings be regular, as if he was sued by the defendant in the judgment upon his indebtedness to him." Jefferies v. Harvie, 38 Miss. 97; Erwin v. Heath, 50 Miss. 795; Hoffman v. Levi Simon Co., 52 Miss. 302; and Martin v. Harvey, 54 Miss. 685. From this it necessarily follows that the clerk of the Supreme Court is not authorized, under section 3014, to issue writs of garnishment on a judgment, by that court, for costs incurred on appeal thereto.
Section 3032 provides that: "The clerk of the circuit court in whose office any judgment or decree shall be enrolled, may issue execution and writs of garnishment thereon, directed to any lawful officer of his county, returnable before the court which rendered the judgment or decree." Was the clerk of the circuit court of Jones county authorized by this statute to issue these writs?
It is hardly possible that the Legislature intended to confer greater power on the clerks of circuit courts, with reference to the collection of costs on appeal to the Supreme Court, than it has conferred on the clerk of the Supreme Court itself.
Moreover, under section 146 of the State Constitution, the Supreme Court has no original, but only appellate, jurisdiction, Planters' Ins. Co. v. Cramer, 47 Miss. 200, 202; Brown v. Carraway, 47 Miss. 668; Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 49 L.R.A. (N.S.) 565; Robertson v. Southern Bitulithic Co., 129 Miss. 453, 92 So. 580, and Brown v. Sutton, 158 Miss. 78, 121 So. 835, and, as hereinbefore pointed out, a garnishment, in so far as the garnishee is concerned, is an original suit to recover a debt due by him to the judgment debtor. Such suits involve the trial of issues of fact, for which no jurisdiction has been conferred on the Supreme Court; its jurisdiction for the trial of such issues is conferred by section 3376, Code 1930, and is there limited to "issues of fact which may arise out of any appeal before it and be necessary to the disposition thereof." The issues raised by these writs of garnishment do not arise out of the appeal to this court in the case in which it was issued, and are in no way necessary to its disposition. Section 3032, Code 1930, must therefore be construed as having no application to a judgment rendered in the Supreme Court for costs incurred therein. This holding is in accord with State v. Booker, 61 Miss. 16. In that case, an execution issued by the clerk of the Supreme Court on a judgment rendered by that court upon a forfeited appearance bond on appeal was levied on personal property, and a third party interposed a claim thereto. The court held that it was without jurisdiction to try such an issue, and that section 2633, Code 1880, now section 3107, Code 1930, providing that, "The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin," had no application to property seized under an execution issued on a judgment rendered by the Supreme Court. Under the law then, section 1774, Code 1880, now section 3424, Code 1930, a person not a party to an execution claiming property seized thereunder was authorized to interpose a claim thereto, and the issue thus raised tried by the court from which the execution issued. The court dismissed the claim and said that the claimant might "resort to an action of replevin."
Counsel suggest that, if this court cannot entertain the garnishment, and if it should have been made returnable to the circuit court (we presume of Jones county), the writ should not be quashed, but should be remanded to that court. We have no statute authorizing the issuance of process by the clerks of trial courts for the collection of costs incurred on an appeal to the Supreme Court. Section 3406, Code 1930, under which judgments rendered by this court on appeal thereto must be certified to the trial court and there collected, Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626, does not apply to judgments for costs incurred in the Supreme Court, for that section expressly provides that such judgments shall be so certified, "if the costs accrued in the Supreme Court shall be paid to him," (the clerk of the Supreme Court). Moreover, under section 3032, Code 1930, a writ of garnishment issued by a clerk of the circuit court must be made returnable to the court which rendered the judgment on which the writ is issued.
The motion to dismiss this garnishment will be sustained.
So ordered.