Opinion
No. 36015.
January 28, 1946. Suggestion of Error Overruled February 25, 1946.
1. GARNISHMENT.
A garnishee which permitted a default judgment and a writ of execution against it on the judgment was not entitled to have default judgment set aside because of failure of its agent to file its answer to the writ of garnishment.
2. GARNISHMENT.
A variance between name of defendant in judgment on which garnishment was issued and that stated in the suggestion for, and writ of, garnishment, and in judgment rendered thereon, invalidated judgment against garnishee and was not a mere error which, under statute, was released by garnishee's suing out of injunction to restrain execution of writ of execution against it (Code 1942, secs. 1347, 2783, 2798).
3. JUDGES.
A judge who issues judgment forming basis for subsequent garnishment proceeding is not disqualified from thereafter issuing fiat for injunction to restrain execution of a writ of execution against garnishee.
APPEAL from the chancery court of Sunflower county, HON. J.L. WILLIAMS, Chancellor.
Frank E. Everett, of Indianola, for appellant.
Garnishment proceedings are statutory and were not known at common law. Therefore, before either party can claim a benefit or a detriment, he must comply with the statutes.
Code of 1942, Secs. 2783, 2798.
Under the statute, there was nothing for the court, at its March 1945 term, to do except render the judgment which now stands enjoined. The sheriff's returns on the process show personal service on February 6th. The bill of complaint admits the proper service of process.
As we see the law, there were two courses open to the Yazoo Mississippi Valley Railroad Company when this writ was served upon it. First, it could appear and answer as it was directed to do by the process of the court. Second, had it desired to take advantage of the misnomer in the initial "J" in the name of Watson instead of the letter "G", it could and should have appeared and filed a plea in abatement. The error in one of the initials of Watson could be considered only as a misjoinder of parties.
The defense of a misjoinder of a defendant must be raised by a plea which should suggest the name of the party to be joined as co-defendant.
Belt v. Adams, 125 Miss. 387, 87 So. 666; Aven v. Singleton, 132 Miss. 256, 96 So. 165; Afro-American Sons Daughters, v. Webster, 172 Miss. 602, 161 So. 318; Code of 1942, Sec. 1457.
It is not material error that one having no right of action was joined as plaintiff where recovery was in the name of those plaintiffs having the right, no objection for misjoinder having been made.
Jackson v. Dunbar, 68 Miss. 288, 10 So. 38.
It certainly was not the province of the railroad company to say whether or not it would be bound by the writ served upon it, or that the writ was void for misjoinder and it would not answer. It was its duty to appear and plead in abatement or answer the writ, and let the court issuing it pass upon it. By the railroad's failure to file a plea in abatement, it has waived the misnomer or misjoinder appearing in the writ served upon it.
Winner Myer v. Weems, 77 Miss. 662, 27 So. 618; Hiller et al. v. Cotten, 54 Miss. 551; Alabama V.R. Co. v. Bolding, 69 Miss. 255, 13 So. 844; Baltimore Railroad Co. v. Baptist Church, 34 L.Ed. 787; First National Bank v. Jaggers, 31 Md. 38; Lindsey v. Delano, 78 Iowa, 350; Pennsylvania Co. v. Sloan, 125 Ill. 72; Dixon v. Melton, 137 Ky. 689, 126 S.W. 358; Lafayett Ins. Co. v. French, 15 L.Ed. 451; Donohoe v. Southern Pacific Co. (Cal.), 94 Am. St. Rep. 38.
Where a garnishment suit is brought against a party, it is his duty promptly to defend it, if he has any defense to make, at the proper time, and if he fails to do so and judgment is rendered against him, in consequence of his negligence, a court of equity has no power to relieve him, although it might be of the opinion that the original judgment was erroneous.
Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430; Miller v. Palmer, 55 Miss. 323; Stroup v. Sullivan et al. (Ga.), 46 Am. Dec. 389; 12 R.C.L. 829, Sec. 65; Griffith's Mississippi Chancery Practice, Sec. 440.
When an injunction shall be granted to stay the execution of a judgment at law, in whole or in part, the issuance of such injunction shall operate as a release of all errors in the judgment.
Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344; Code of 1942, Sec. 1347.
The circuit judge cannot authorize the complainant or anyone else to enjoin his own judgments.
Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681; Meggett v. Greenville Commercial Body Co., 161 Miss. 370, 137 So. 187; Stroup v. Sullivan et al., supra; State ex rel. Denegre v. Judge of the Second District Court (La.), Minning's Unreported Cases, p. 388; Code of 1942, Secs. 1335, 1657.
We do not think the railroad company was legally entitled to any further notice as to the progress of the trial when the service of process summoned it to appear at the term of court and defend the suit, and the charge of legal fraud is not well taken or justified.
Strain v. Gayden, 197 Miss. 353, 20 So.2d 697.
Elbert Johnson and Arthur B. Clark, both of Indianola, Lucius E. Burch, Jr., of Memphis, Tenn., and Vernon W. Foster and Chas. A. Helsell, both of Chicago, Ill., for appellee.
Equity may grant relief against a judgment at law which is unjust and inequitable, where the party had a good defense to the action, but had no opportunity to avail himself of it in the legal action; or where the loss of his defense was occasioned by the fraud or fault of the adverse party, by surprise or accident, or by his own mistake or ignorance of his defense, provided there has been no negligence or fault on the part of complainant or his counsel or agents.
Hiller v. Cotton, 48 Miss. 593; Herring v. Winans et al., Smedes M. Ch., 1 Miss. 466; Webster v. Skipwith, 26 Miss. 341; 34 C.J. 460, Sec. 720.
The judgment against complainant in the garnishment proceedings was void.
United Collieries v. Martin, 248 Ky. 808, 60 S.W.2d 125, 89 A.L.R. 971; People's Wayne County Bank v. Stott, 246 Mich. 540, 224 N.W. 352, 64 A.L.R. 427; Code of 1942, Sec. 2783; 4 Am. Jur. 566, Sec. 26.
Counsel argues that under Section 1347 of the Code of 1942 by the injunction all errors in the judgment of the defendant against the complainant as garnishee were released, and cites as authority Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1. It is the contention of the complainant that the default judgment against it is entirely void. Furthermore, if equitable grounds for sustaining the injunction appear, it makes no difference in the outcome whether or not the judgment is valid or void.
The circuit judge or any of the other judges named in the statute may grant injunctions in all cases where the same may properly be granted according to right and justice, returnable to any court whether the suit or proceeding be pending in the district of the judge or chancellor granting the same or not. A chancellor under a proper showing of facts, needless to say, may grant an injunction prohibiting the enforcement of a decree of his own court.
Code of 1942, Sec. 1657.
A judgment for $490.26 was rendered by a Circuit Court in favor of the J.R. Watkins Company against G. Edgar Watson and B.H. Campbell. Campbell paid the judgment, and claiming that he was sued as a surety for Watson, and therefore under Sec. 257, Code of 1942, he became an assignee thereof, and entitled to all the rights of the judgment creditor thereon, he sued out a writ of garnishment thereon against the Yazoo Mississippi Valley Railroad Company, but though duly served therewith it filed no answer thereto, resulting in a judgment by default against it for the amount of the Watkins judgment. A writ of execution against the appellee was issued on this judgment, and placed in the hands of the sheriff whereupon the appellee sued out an injunction against the sheriff and Campbell, restraining the execution of the writ.
The bill of complaint on which this injunction was issued alleged, in substance, what has hereinbefore been said, and in addition thereto:
1. That on account of the illness of its local attorney, its answer to the writ of garnishment, denying any indebtedness to the defendant named in the writ, was mailed to its station agent at Sunflower, to be filed by him in the court to which the writ of garnishment was returnable; "but who, through accident and mistake, did not file the same in the said . . . court . . ., but filed it in his office believing, by accident and mistake, that the said answer in garnishment mailed to him was for the files in his office," and that it did not learn of this mistake of its agent until the issuance of this execution, and
2. That the judgment against it is void for the reason that in the suggestion for the writ of garnishment, and in the writ issued thereon, and also in the judgment rendered against the garnishee for its failure to answer the writ, the name of the defendant in the judgment on which the writ was issued was stated as J. Edgar Watson, and not G. Edgar Watson, as it appeared in the original judgment.
A demurrer was filed to this bill of complaint, and also a motion to dissolve the injunction, both of which were overruled, from whch Campbell was granted an appeal to settle the principles of the case.
The appellant rests his claim that the court below erred in overruling his demurrer on two grounds:
1. That the appellee was not entitled to any consideration because of the failure of its agent to file its answer to the writ of garnishment. And
2. That the variance between the name of the defendant in the judgment on which the garnishment was issued, and that stated in the suggestion for, and the writ of, garnishment, and in the judgment rendered thereon, did not render that judgment void, but was a mere error which, under Sec. 1347, Code 1942, was released by the suing out of this injunction.
The first of these contentions is ruled in the appellant's favor by Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430, and requires no further discussion.
Coming then to the second of these contentions, we must hold that the judgment against this garnishee is void, and therefore not within the orbit of Sec. 1347, Code 1942. Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1.
A garnishment on this Watkins judgment is authorized by Sec. 2783, Code 1942, only against a person who, "is indebted to the defendant therein, or has effects or property of the defendant in his, her or its possession," etc. (Italics supplied). The suggestion for the issuance of this writ of garnishment required the garnishee to answer as to his indebtedness, etc., not to the defendant, G. Edgar Watson, named in the judgment on which it was issued, but to another; and the judgment thereon charges the garnishee with the payment to the judgment creditor not of the debt (the amount of the Watkins judgment) presumed under Sec. 2798, Code 1942, Little v. Nelson, 61 Miss. 672, to be due by it to the defendant named in the Watkins judgment, but with its claimed debt to a person which the suggestion for the writ, the writ itself, and the judgment rendered thereon, disclose not to be connected with that judgment; something which Sec. 2783, Code 1942, which must be strictly followed, does not permit.
It may be said, as to which we express no opinion, that this error in the name of the defendant in the Watkins judgment in the suggestion for the garnishment thereon could have been amended before the judgment against the garnishee was rendered; but unfortunately this was not done, resulting in perpetuating that error and rendering the judgment against the garnishee void.
One other question arises under the motion to dissolve the injunction. The fiat for the injunction was issued by the judge of the court in which the Watkins judgment was rendered, and who presided at the trial of the Watkins case; for which reason counsel for the appellants say he was disqualified from issuing this fiat.
This contention is so obviously without merit as not to require an extended response thereto.
Affirmed and remanded.