Opinion
No. 27233.
June 4, 1928.
1. GARNISHMENT. Where garnishee denied indebtedness, but suggested claim of exemption, judgment debtor should have been brought in by notice to assert claim, and proceedings should have been stayed ( Hemingway's Code 1927, section 2062).
Where garnishee denied indebtedness to judgment debtor and averred that judgment debtor was indebted to garnishee, but suggested that judgment debtor would probably claim exemptions, judgment debtor should have been brought in by notice to assert his claim, and all proceedings should have been stayed pending determination of that issue, under Code 1906, section 2346 (Hemingway's Code 1927, section 2062).
2. GARNISHMENT. Garnishee stands as mere stakeholder and must not voluntarily do anything to prejudice of parties.
Garnishee stands as a mere stakeholder and must not voluntarily do anything to prejudice of parties, but must let law take its course, except that he may protect himself from unauthorized acts and proceedings.
3. GARNISHMENT. Service of writ of garnishment binds money belonging to defendant that garnishee receives between date of service and return day of writ.
Service of writ of garnishment binds any money belonging to defendant that garnishee may receive between date of service and return day of writ.
4. GARNISHMENT. If garnishee paid judgment debtor full salary after service of writ, garnishee was liable for payments, if in excess of debtor's exemption.
If garnishee paid or permitted judgment debtor to draw his full salary after service of writ, garnishee was liable for such payments, if in excess of legal exemption, if any, of debtor.
5. GARNISHMENT. If judgment debtor owes garnishee, garnishee may set off debt, but pays debtor after service of writ at his peril.
Garnishee has right to set off any debt judgment debtor may owe him; but, if it is not actually applied to garnishee's debt, but is paid to debtor, such payment is made after service of writ at garnishee's peril.
APPEAL from circuit court of Jackson county; HON. W.A. WHITE, Judge.
Ford, White, Graham Gautier, for appellant.
Although defendant was a married man, and probably entitled to an exemption, he did not claim nor assert an exemption, but appeared in court and testified, and was not required to propound his claim to the exemption, as provided by section 2346, Code 1906. The failure of the court, when this was brought to the court's attention, to stay the proceeding and cause summons to be issued requiring the defendant to claim his exemption constitutes reversible error. Howell v. Moss Point Furniture Co. et al., 136 Miss. 399; R.R. Co. v. Bagly, 94 Miss. 437.
A garnishee is regarded as a disinterested person owing money to or having in his possession property of another, without fault or blame, and he is supposed to stand indifferent as to who shall claim the money or the property. The garnishee in the eye of the law is a mere stakeholder, the custodian of property or estate attached in his hands and has no right to do any voluntary act to the prejudice of either the plaintiff or the defendant in the action. The garnishee must not, after service, be guilty of any act which will prejudice the rights of the garnishing creditor. 12 R.C.L., par. 92; 28 C.J. 259, par. 357.
It is as well established that a garnishee has a right to set-off, against a debt due him by a judgment debtor, any money belonging to the judgment debtor that might be in his hands, and this right carries with it the exacting duty to exercise the right of set-off fairly and properly. Prudential Trust Co. v. Merchants National Bank, 133 P. 119; Trotier v. Foley, 108 A. 498; Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96.
Under the garnishment statute, and authorities of this court, whatever the garnishee paid to Charles Rosenblum between the service and the return day of the writ, was liable to appellant's demand, and for this he should have judgment here, or a jury trial to fix the amount. See Columbus Ins. Co. v. Hirsh, 61 Miss. 74; Fearing v. Shafner, 62 Miss. 791.
Colmer Herring, for appellee.
It is elementary that a garnishing creditor can acquire no better position than his judgment debtor has himself. Therefore, unless Charles Rosenblum himself could have recovered from H. Rosenblum any amount claimed by appellant in a suit, neither can the appellant here. For if he could, then appellant would, by virtue of his writ of garnishment be in a better position than Charles Rosenblum, the judgment debtor, himself was. Section 2059, Hemingway's Code 1927; Section 1938, Hemingway's Code 1917; Sec. 2343, Hemingway's Code 1906; Schuler v. Murphy, 91 Miss. 518, 44 So. 810.
The garnishee had a perfect right under the law to offset what his son, the judgment debtor, owed him against these amounts. See Packard Motor Co. v. Tally (Ala.), 103 So. 455; Simpson Transfer Co. v. Hood (Ala.), 110 So. 149; 20 Cyc. 994; Chamberlin Hunt Academy v. Port Gibson Brick Co., 80 Miss. 517, 32 So. 116-484; Mobile Street Railway Co. v. Turner, 91 Ala. 213, 8 So. 684; 20 Cyc. 994 F.
The holding of our court in the case of The Construction Company v. The Academy, 80 Miss. 517, 32 So. 484, recognizes the principle that a garnishee cannot be deprived of any contractual rights which he has made with the defendant. In the case at bar, the garnishee, H. Rosenblum, had agreed with Charles Rosenblum on the method by which Charles Rosenblum was to reduce his indebtedness. He had agreed to allow him a drawing account against his salary, which was to be credited, but not paid in cash, at the end of the month. By the plan of this agreement Charles Rosenblum was at all times indebted to his father and H. Rosenblum, his father, the garnishee, had very substantial rights for the reduction of his indebtedness which no garnisheeing creditor had the right to abrogate by legal proceedings or otherwise. See Melton Hardware Co. v. Heidelberg, 91 Miss. 598, 44 So. 857.
Counsel relies on the case of Howell v. Moss Point Furniture Company, 136 Miss. 399, 101 So. 559. We recognize the rule as laid down in that case, but there is one vital and distinguishing difference between that case and the case at bar. For in the case cited, the garnishee answered admitting an indebtedness, whereas in this case the garnishee specifically denied any indebtedness. Section 1941, Hem. Code 1917, section 2346, Hem. Code 1906.
In the case at bar, after denying specifically any indebtedness and pleading specifically a set-off, the garnishee added under what was styled "Notice of special matter under the general issue," that: "The said Charles Rosenblum will probably claim any amount received by him as exempt."
If there is any question that is seriously presented in this case and worthy of serious consideration it is this question as to whether or not this case should be reversed and remanded on this question alone, as to whether the court erred in not requiring Charles Rosenblum, the judgment debtor, to be interpleaded in the garnishment. At this stage of the proceedings, in view of this surplusage on the part of the garnishee that the said Charles Rosenblum would probably claim any amount received by him as exempt. This certainly was surplusage at the most and should be treated as such. As a matter of fact, the entire plea, styled "Notice of special matter under the general issue," was subject to a motion to be ruled out as surplusage by the plaintiff, if he had seen fit. For as a matter of fact, there was no plea of the general issue filed, and therefore the notice of the special matter under the plea of general issue, was certainly not necessary or proper according to the rules of pleadings.
We state that neither the garnishee, the judgment defendant nor the judgment creditor could have been harmed whichever way the case turned by the judgment defendant, Charles Rosenblum, not being summoned as counsel insisted that he should have been. But regardless of anything else that might be said, certainly if it were erroneous for the court not to stop the proceedings and have the said defendant, Charles Rosenblum, summoned, such error was harmless and nothing could be gained on this point by reversing and remanding the case.
J.O. Brondum, appellant, obtained a judgment, growing out of an automobile accident, against Charles Rosenblum, in June, 1926. Appellant had been unable to collect his judgment, and on April 13, 1927, caused a writ of garnishment to issue on said judgment and to be served on H. Rosenblum, father of Charles Rosenblum, which writ was returnable before the circuit court on the 4th Monday of September, 1927.
The garnishee, the appellee herein, answered the writ, denying any indebtedness and with his answer filed what appellee terms "Notice of Special Matter under the General Issue." On the trial, this seems to have been treated as part of the answer. It reaffirms denial of any indebtedness due Charles Rosenblum, judgment debtor, and avers that Charles was indebted to the garnishee, as would be shown by sworn itemized statements attached thereto.
The answer further averred that said garnishee was doing a general dry goods business under the name of "Rosenblums;" and that there was a mutual account existing between the father and the son, garnishee and judgment debtor, respectively, which arose by reason of the employment of Charles in said business.
It was further averred that Charles had, at all times, been indebted to the garnishee in a sum in excess of any indebtedness the garnishee might owe Charles. The answer also contained the averment:
"And if the garnishee herein is held to have been indebted to the said defendant, Charles Rosenblum, in any amount, he pleads the amount due by the said Charles Rosenblum as a set-off thereto, and suggests that the said Charles Rosenblum will probably claim any amount received by him, as exempt."
Appellant, owner of the judgment, filed a general traverse to garnishee's answer, denying the accuracy of the account filed as exhibit, and otherwise joined issue. After hearing the evidence, the trial judge granted a peremptory instruction, directing the jury to find for garnishee.
For error, it is assigned and argued: First, that, the answer having suggested the claim of exemption, the judgment debtor should have been brought in by notice to assert his claim, and that all proceedings should have been stayed pending a determination of that issue (section 2346, Code 1906 [section 2062, Hemingway's 1927 Code]); and, second, that the court erred in granting the peremptory instruction.
We do not think the first ground is an open question. It was settled by two announcements of this court. In Howell v. Moss Point Furniture Co. et al., 136 Miss. 399, 101 So. 559, this court, speaking through Judge COOK, said:
"In the case at bar the judgment debtor was in no sense a party to the proceedings, and when the exemption was duly suggested, the proceedings against the garnishee should have been stayed, and a summons issued notifying the suggested exemptionist of the garnishment and requiring him to assert his right to the exemption."
There, as here, the judgment debtor appeared as a witness, and while he might have waived exemption, such appearance was there held not to be a waiver. In Illinois Cent. R. Co. v. Badley, 94 Miss. 437, 49 So. 114, the court, through Judge FLETCHER, said:
"The exemption was duly suggested, and the court was without power to proceed in this cause until a summons had issued notifying the suggested exemptionist of the garnishment proceeding and requiring him to assert his right."
Appellee contends that only where the answer of garnishee "admits an indebtedness" is it required for the debtor to be brought in to assert his exemption. Conceding, for argument, the correctness of this contention, it nevertheless appears in the case at bar that the garnishee anticipated that the correctness of his answer would be challenged, or else the answer would not have suggested the exemption; and having himself made the suggestion, we think it was incumbent on the court to have the debtor assert his claim. A statement filed as exhibit to the answer shows that Charles Rosenblum, judgment debtor, was earning a salary of one hundred dollars per month. If the statutory exemption to a married man was to be claimed, as suggested in the answer, this issue should have been first made up and disposed of.
The relation of the garnishee to the parties is well defined by the authorities. He stands as a mere stake-holder, and must not voluntarily do anything to the prejudice of the parties. He must let the law take its course, except he may protect himself from unauthorized acts and proceedings. 12 R.C.L. 850, section 92, 28 C.J. 259.
Service of the writ of garnishment binds any money belonging to the defendant that garnishee may receive between the date of service and the return day of the writ. Columbus Insurance Co. v. Hirsh et al., 61 Miss. 74; Fearing v. Shafner, 62 Miss. 791.
It appears from the record that the debtor, Charles Rosenblum, was in exclusive charge of the store and kept the books. He testified that he drew his full salary of one hundred dollars per month in cash, or its equivalent, from April 13 to August 5, 1927, dates of service and return day of the writ. At other places in the record, he disputes this, but the books kept by him strongly indicate this to be true. If the garnishee paid or permitted him to draw his full salary after service of the writ, the garnishee would be liable for said payments, and certainly, if in excess of the legal exemption, if any, of debtor.
The garnishee claims, and would have, the right to set off any debt the judgment debtor might be due him, but it must be actually applied to garnishee's debt; and if not applied, but is paid to the debtor, such payment would be at the peril of garnishee. Prudential Trust Co. v. Merchants' National Bank, 66 Or. 224, 133 P. 1191; Trottier v. Foley, 42 R.I. 422, 108 A. 498; Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96.
Appellee relies upon the rule announced in Packard Motor Co. v. Tally, 212 Ala. 487, 103 So. 455, where the employee was permitted, by agreement with the employer, to draw his wages in advance, and for this reason it was held free from garnishment. The facts are different here. Young Rosenblum was employed at a fixed monthly salary and permitted to draw the same just as he desired.
Whether the indebtedness claimed to be due the garnishee was bona fide is challenged by the appellant. We think the proof on this issue was in conflict. The statement filed with the pleadings does not fully accord with the books introduced in evidence, and the explanation given by garnishee and debtor is much beclouded.
We think there was such conflict in the evidence as would make it necessary for submission to the jury, and, for the reasons indicated herein, the judgment of the court below will be reversed and remanded.
Reversed and remanded.