Opinion
No. 29070.
January 5, 1931.
1. JUSTICES OF THE PEACE.
Where garnishee was personally served for requisite time before return day, justice of peace on return day could render judgment final (Hemingway's Code 1927, sections 2057, 2058, 2061).
2. GARNISHMENT.
Purpose of judgment nisi against garnishee is to give garnishee opportunity to answer writ in accordance with statute (Hemingway's Code 1927, sections 2057, 2058, 2061).
3. GARNISHMENT. Garnishee on return day, if desiring to interpose defense to writ, should file answer setting up defense and not motion to quash writ ( Hemingway's Code 1927, section 2058).
Judgment nisi was rendered against garnishee and scire facias issued commanding him to appear at subsequent term and show cause why judgment should not be made final. On return day garnishee filed motion to set aside judgment nisi and quash writ of garnishment on ground that writ was void because of attempt to impound funds belonging to county of state without its consent.
4. GARNISHMENT.
Where garnishee on return day under scire facias after judgment nisi did not file answer, no issue was presented, warranting exclusion of evidence setting up defense (Hemingway's Code 1927, sections 2057, 2058, 2061).
APPEAL from circuit court of Jones county, First district. HON.W.J. PACK, Judge.
Shannon Schauber, of Laurel, for appellant.
A state or a municipality or county is not included in the word person as used in our statute on garnishment.
Dollman v. Moore, 70 Miss. 267, 272; Welch Lumber Co. v. Carter Bros., 2 A.L.R., 1583; Clarksdale Compress Storage Co. v. Caldwell Co., 31 So. 790; 28 C.J., sec. 70, page 58; Dollar et al. v. West Commission Co., 78 Miss. 274.
The salary of a public officer while in the hands of a government disbursing agent cannot by a legal process be subjected to the payment of the officer's private debts.
Scruggs et al. v. Electric Paint Varnish Co., 105 So. 745.
The service of the writ of garnishment upon W.L. Busby, chancery clerk, under the facts in this case was in effect a garnishment against the county and unauthorized by law.
Howell v. Kersh, 119 So. 186.
J.T. Taylor, of Ellisville, for appellee.
The evidence was irrelevant, the case was being tried on the garnishee's motion to set aside the judgment and quash the writ of garnishment. The writ of garnishment informed the garnishee what to do and he refused to do it. He should have answered and told to the court what the writ of garnishment required him to tell and let the court judge the questions raised on his evidence.
Section 2058, Hemingway's Code 1927; Section 2061, Hemingway's Code 1927.
A chancery clerk is not immuned from the operation of the writ of garnishment.
Turner v. Nicholson (First National Bank, Garnishee), 117 So. 329; A.A. Berlson v. Miller, 56 Miss. 399; Howard, Sheriff v. Proskauer, 57 Miss. 247; Buleson v. McLain. 56 Miss. 399.
The appellee recovered a judgment in a court of a justice of the peace against Townsend for ninety dollars, and had it enrolled in the office of the circuit clerk, by whom a writ of garnishment was issued thereon against "W.L. Busby, Chancery Clerk," returnable to the court of the justice of the peace who rendered the judgment. This writ was served personally on Busby, but he failed to appear and answer it on the return day; and a judgment nisi was rendered against him by the justice of the peace for the amount of Townsend's judgment, directing a scire facias to be issued commanding him to appear at a subsequent term of the court and show cause why the judgment should not be made final. The scire facias was issued, returnable to a latter term of the court, and served on Busby. On the return day thereof, Busby filed a motion to set aside the judgment nisi and quash the writ of garnishment, alleging that the writ is void "because it is an attempt to seek or impound funds belonging to Jones county, Mississippi, a political subdivision of the state of Mississippi, without its consent." This motion was overruled, and judgment final was rendered.
On an appeal to the county court, Busby sought to introduce testimony to the effect that the only property in his hands belonging to Townsend consisted of two county warrants issued by him as chancery clerk to Townsend, who was a constable, pursuant to an order of the board of supervisors, for money due Townsend by the county for official services. This evidence, on motion of the judgment creditor, was excluded. Busby's motion to quash the writ of garnishment was then overruled and a judgment was rendered against him and the sureties on his appeal bond in favor of the judgment creditor for the amount of the judgment on which the writ of garnishment was issued. On appeal to the circuit court, the judgment of the county court was affirmed.
Section 2341, Code 1906, section 2057, Hemingway's Code 1927, provides that: "If the garnishee be not personally served, and make default, judgment nisi shall be rendered against him, and a scire facias awarded, returnable to the next term, unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter." The garnishee here was personally served with the writ for the requisite time before the return day thereof, and, therefore, under section 2345, Code 1906, section 2061, Hemingway's Code 1927, the justice of peace could have rendered a judgment final against him. The purpose of the judgment nisi was to give the garnishee another opportunity to answer the writ in accordance with the provisions of section 2342, Code 1906, section 2058, Hemingway's Code 1927.
Instead of filing a motion to quash the writ of garnishment, the garnishee should have filed an answer thereto in accordance with the statute, and had it appeared therefrom that he did not owe, or have in his hands property belonging to, the judgment debtor, and issue had been taken thereon, the evidence he sought to introduce in the county court would have been competent; and if the county warrants which had been issued to the judgment debtor were not subject to garnishment — as to which we express no opinion — the garnishee would have been entitled to a discharge from liability therefor to the judgment debtor. In default of an answer to the writ of garnishment, no issue was presented for trial, and, consequently, the offered evidence was properly excluded.
Affirmed.