Opinion
No. 34141.
April 29, 1940.
1. ATTACHMENT.
A person suing out an attachment in chancery court is chargeable with the expense resulting from the attachment, although no bond is required for suing out the attachment.
2. ANIMALS.
Where city agreed to keep animals at city zoo without charge to owner of animals until picked up by owner, there was an implication that the property would be taken up or called for within a reasonable time.
3. ANIMALS.
Where city agreed to keep animals at city zoo without expense to owner of animals until animals were called for by owner, city had right at any time to notify owner to take charge of property and to recover from owner expense of caring for property if not called for in compliance with such notice.
4. ATTACHMENT.
Where city agreed to keep animals at city zoo without expense to owner of animals until they were called for by owner when bill of complaint in attachment was served on city, the property ceased to be subject to control or demand of either the city or the owner, and complainant in attachment was properly charged with expense of care of the property from time of service of process to date of decree ordering sale.
5. ATTACHMENT.
"Attachment in chancery" is different from "attachment at law" in that an attachment at law requires the sheriff to take charge of the property unless either the complainant or the defendant gives bond prescribed by law, but there is no such provision in the law of attachment in chancery and no such proceeding is contemplated.
6. ATTACHMENT.
The chancery court has power, incident to its jurisdiction, to make appropriate orders for the custody and care of property impounded under attachment proceedings so as to preserve the subject matter of the litigation until the final determination thereof, but the complainant, having instituted the proceedings, must be the one to pay the expense and if, on final decree, the complainant does not get a decree relieving it of the responsibility, it continues to be liable for the expense incident and necessary to the preservation and care of the property.
APPEAL from the chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
Alexander Satterfield, of Jackson, for appellant.
To hold the appellants liable on the feed bill from the date of the service of process, August 8, 1939, until the decree of the court, December 13, 1939, there must have been some act which was done by the appellants, plaintiffs below, which interferred with this relationship. The appellants brought this action against the non-residents, and joined the city and I.E. Bennett as garnishee defendants. What was required of the defendants was that they answer, stating whether or not they held such effects, which they admitted, but claimed the right to the feed bill. Appellants did not seek to deprive the city of the animals and had no right whatsoever to them, until such claim had been adjudicated in the cause.
5 Am. Jur. 17.
To hold that the appellants are liable for the amount of the feed places are undue burden on them, a burden brought about by the mere filing of a suit, and a suit which did not claim the title to the property, but merely asked that it be held pending the outcome of the hearing on the answer. Therefore, to justify this position, either one or the other or the following must be true: (1) That filing a suit in which a third party is garnished, makes the plaintiff liable to the third party garnishee either for upkeep of the property or effects, or for interest on money subjected, or (2) that the mere service of process makes the plaintiffs immediately liable for said upkeep on property or interest on money. Neither of the above contentions is true, particularly where the responsibility of caring for the property is on already assumed by the garnishee defendant under a specific contract for that purpose which has not been changed or abrogated by either of the parties, and which has fulfilled, until the actual sale of the animals, the very purpose for which it was made. Therefore, the mere filing of the suit or the service of the process cannot and did not have any effect on the original agreement between the city and Mrs. Haag.
Wade on Attachment, secs. 325, 338.
The appellants assert that as against the City of Jackson only the right of the city to transfer this property or remove same out of the jurisdiction of the court was affected. Until the final decree of the court on the hearing on the answer in garnishment could the rights, if any, of appellant be determined.
The city failed to take advantage of garnishment statute to interplead property.
Miss. Code of 1930, sec. 1844.
In 6 C.J. 371, there is this statement: "If livestock is attached and the defendant does not have it released on bond, he is bound to support it and is responsible for such expense if judgment is entered against him."
Sample v. Rogers, 119 S.W. 119, 134 Ky. 93; Work v. Glaskin, 33 Miss. 539; Smith v. German Bank, 60 Miss. 69.
Under the Mississippi rule the City of Jackson cannot complain that they had no remedy, or that the garnishment of the appellants prevented them from utilizing the animals.
The only requirements of the city was that they keep the animals in the zoo, and since they have not sought to terminate the agreement with the Haags we must presume that they would have remained there anyway, until the court passed upon the rights of the appellants. There is no basis whatever for the city charging the appellants with the costs for the food of these animals. The city were not bona fide purchasers, and there is nothing that showed that they ever inquired concerning whether the animals were clear of liens. On the contrary, they placed them in the Jackson Zoo merely in pursuance of an agreement to feed the animals until they should be called for by the owners with the considerations being care of the animals by the city for the right to exhibit them.
W.E. Morse, of Jackson, for appellees.
This proceeding was filed under Section 173 and Section 174 of the Code of 1930. The appellant in its brief cites Vol. 5, Am. Jur., page 17, and cases under said section, none of which are in point here.
Appellant complained because the city would not bring the monkeys in the court room. Appellant states that under Section 1844 we should have delivered the monkeys to the sheriff. Under Section 1858, Code of 1930, on garnishment, the court held the jury must assess the value of the property cited. Bedon v. Alexander, 47 Miss. 254; Thomason v. Wadlington, 53 Miss. 560. Under Section 1862, the court is authorized to, in exceptional cases, allow the garnishee reasonable compensation in addition to certain costs therein allowed. Certainly this is a case of that character, where you have wild animals that have to be caged. If these animals were allowed to run loose, they would injure the public. The sheriff had no place to put them; appellant would not have them, and it was necessary for the appellee to keep them. We state that the court was amply justified in permitting a recovery for the feed of the animals, where they were taken off exhibit and held subject to the outcome of this lawsuit. In addition to that, if the sheriff had kept these animals, he would have had to pay this money out. The city simply was holding these animals awaiting the outcome of the lawsuit. It could not sell them, as it had a right to do under its contract with Mrs. Haag, and stop the feed bill. We therefore respectfully submit that the case should be affirmed.
On the 8th day of August, 1939, the Citizens State Bank of Marianna, Florida, a corporation under the Laws of the State of Florida, filed a bill of complaint in attachment in a Chancery proceeding against the City of Jackson, Mississippi; I.E. Bennett, a citizen of Hinds County, Mississippi, and keeper of the zoo belonging to the City of Jackson; the Mighty Haag Shows, Incorporated; Mrs. Alice Haag, President, and Helen Haag Hayes, Secretary-Treasurer; alleging that:
On the 8th of March, 1939, the Mighty Haag Shows, acting through the president and the secretary-treasurer, for valuable consideration, executed a promissory note to the complainant in the sum of $3700, due April 1, 1939, which provided for ten per cent interest per annum from maturity, together with all costs of collection, including ten per cent of principal and interest as attorney's fee; the said note being endorsed in blank by the said Mrs. Alice Haag and Helen Haag Hayes; and to secure the payment of this note, there had been deposited as collateral security three notes of Bennie R. Bewley aggregating $700, which were also secured by chattel mortgage covering "all equipment of the Mighty Haag Shows, Incorporated, including tents, seats, trucks and animals." Copy of the note and chattel mortgage were filed as exhibits. It was further alleged that Mrs. Alice Haag and Helen Haag Hayes had full authority to act for the said corporation. It was then alleged that there was a credit on the note of $274, leaving a balance of $3426, with interest from April 1, 1939; that said note had been turned over to an attorney for collection, and that interest of ten per cent had accrued on the principal and interest as attorney's fees, making the total demand under the note the sum of $3903.63.
It was still further alleged that: within the last few months Mrs. Alice Haag and Helen Haag Hayes (acting for, and with full authority to act for, said corporation) moved from the State of Florida to the City of Jackson, Mississippi, bringing with them a large part of the said Mighty Haag Shows, such as equipment and animals, which they left at the zoo in the City of Jackson under the personal charge of I.E. Bennett, Superintendent of the zoo, on which they had a lien as the loan had been secured in part by chattel mortgage which covered the same; so far as known, the animals thus left with the Superintendent of the city zoo in Jackson (description of the animals and equipment being set forth) were under the jurisdiction of the court and in the custody of the City of Jackson and I.E. Bennett; that the Mighty Haag Shows, Mrs. Alice Haag and Helen Haag Hayes were non-resident, absent or absconding debtors; that the City of Jackson and I.E. Bennett had in their hands effects which, under the law, could be subjected to the payment of the debt as the court might decree; that the property was subject to the jurisdiction of the court and to be sold to satisfy the remaining debt; and the appellant prayed for an attachment in chancery, publication for the non-resident defendants, for service of process upon the City of Jackson and I.E. Bennett, requiring them to appear at the September, 1939, rules of the court to plead, answer or demur to the bill, answer under oath being waived except as to the discovery prayed for; and for a decree fixing the amount of their debt; and for the condemnation of the property to satisfy the debt, and for a lien upon the property within the jurisdiction of the court.
A citation was published for the Mighty Haag Shows, Mrs. Alice Haag and Helen Haag Hayes, alleging that their last known post office address was Marianna, Florida, but whose present post office address was unknown, demanding that they appear before the Chancery Court of the First District of Hinds County on the 1st Monday of September, 1939, to defend the said suit, which appeared in three issues of a newspaper published within the county as required by law. The city filed a motion for the security of costs in the suit, but the record does not show any disposition of this motion. The city then demurred to the bill, which demurrer was overruled. Thereupon, they filed an answer admitting the possession of the said animals which had been turned over to the City by Mrs. E. Haag of Montgomery, Alabama. (It appears that Mrs. Haag was also known as Alice Haag.) They denied any knowledge of the whereabouts of the Mighty Haag Shows, Mrs. Alice Haag or Helen Haag Hayes, but admitted possession of certain animals described in Exhibit A to the bill of complaint. They stated that they did not know of any other person indebted to, or who had the effects of, the Mighty Haag Shows in their possession; neither did they know where any person indebted to the complainant resided. Mr. Bennett stated that the property did not belong to the city or the zoo, and that they were ready to deliver the chattels to the sheriff; and suggested that Mrs. E. Haag and Helen Haag Hayes, who claimed to be the owners of said property (as shown by Exhibit A), be summoned.
On March 27, 1939, Mrs. E. Haag, by W.A. Haag, wrote a letter to the City of Jackson, as follows:
"The City of Jackson, "Jackson, Mississippi.
"Dear Mayor Commissioners
"We have in our possession:
4 Rhesus 1 Wallaby 1 Java 1 Lion 1 Chacma 1 Tiger 1 Sphinx 1 Wart Hog
which we desire to loan to the City of Jackson on the following terms and conditions:
"The City is to transport said animals from Montgomery, Alabama, to the Zoo in Jackson, Mississippi.
"Said animals to be placed in care of Mr. I.E. Bennett or his successor in office, and are to be given the ordinary and usual care.
"The City of Jackson is not to be responsible for the health and condition of said animals in any manner whatsoever, they being placed in Mr. Bennett's care at our sole responsibility.
"These animals will be held at Livingston Park Zoo until picked up by Mrs. E. Haag or their authorized agent.
"It is understood and agreed by us that by the acceptance of these animals by you that you are to incur no liability whatsoever for the loss or for accidents to said animals.
"It is understood and agreed that one of our trucks will be used in delivery of said animals for which the City of Jackson incurs no responsibility for same.
(Signed) "Mrs. E. Haag, by W.A. Haag."
This letter had noted on it "Received of Mrs. E. Haag Shows the above described animals and truck on the above conditions and on terms stipulated above for the City of Jackson, Mississippi. (Signed) H.M. Carmichael. (Signed) I.E. Bennett."
On the 11th day of August, 1939, the attorney for the City of Jackson addressed to the attorneys for the complainant the following letter:
"Messrs. Alexander Satterfield, "Attorneys at Law, "Capital National Bank Building, "Jackson, Mississippi.
"Gentlemen:
"Enclosed you will find copy of letter by which the City of Jackson came into possession of certain personal property. This letter was signed by Mrs. E. Haag. It does not say anything about the Mighty Haag Shows. It does not show the names of Mrs. Alice Haag or Helen Haag Haynes.
"The City of Jackson does not know of the Mighty Haag Shows, Mrs. Alice Haag or Miss Helen Haag Haynes. Mr. Bennett stated that these animals could be loaned to the City, and they were loaned to the City by this agreement. If you think of attaching these particular animals, which you seem to do, you will have to see that some provision is made for their upkeep. The mortgage that is attached to the bill as Exhibit `B' states `trucks and animals.' The bill charges that we have two elephants along with certain other personal property.
"I have not had an opportunity to check up the authorities. We do not care to hold the animals, however. If you will tell us whom to deliver them to in Jackson we will be glad to release the animals that we have.
"However, this letter puts both you and the Citizens State Bank of Marianna, Florida, on notice that on and after this date we will expect pay for the keeping and feed of the animals.
"Yours truly, "W.E. Morse."
It appears from the record that the complainant did not take charge of the animals and truck, turn it over to anyone, or designate anyone to take charge of the said property. There was no appearance of the defendants, the Mighty Haag Shows, Mrs. E. (or Alice) Haag or Helen Haag Hayes, and a decree pro confesso was taken against them. The city filed a claim for feeding and caring for the animals and caring for the equipment after the service of process — $580.32 being for expenses for the time of the service of process to the date of the decree ordering the sale, and subsequent expenses accruing between the time of ordering the sale and the decree confirming the sale of $119.68, making a total expense account of $700. The property was ordered sold by the chancery court, at which time a bid of $700 was made, which was confirmed — the city becoming the purchaser of the property for the said amount. The complainants appeal from the decree adjudging that the city was entitled to the expenses allowed it for the feeding and care of the animals, contending that the city, under the letter of acceptance from Mrs. E. Haag, was under obligation to keep and care for the animals and equipment at its expense, and that therefore it was not entitled to recover such expense for caring for the animals pendente lite. They contended further that the city was obligated under a contract to continue to care for the animals and equipment until the Mighty Haag Shows or Mrs. E. Haag, the owners, called for them, and that it had no right to recover by imposing the lien or charge upon the property held by it under the said letter above quoted from Mrs. E. Haag.
We are of the opinion that when persons sue out an attachment in the chancery court, they are chargeable with the expense resulting from the attachment, although no bond is required of them for suing out the attachment. When the property was impounded by the attachment proceeding in chancery, the rights of the city to turn the property over to the owners ceased to exist. The provisions in the contract to hold the property until called for by Mrs. E. Haag or the Mighty Haag Shows, or other persons owning the animals and equipment, necessarily implied that the property would be taken up or called for within a reasonable time. No definite time was fixed for the redelivery of the property, and the city was not bound to keep the property indefinitely at its expense. It had the right at any time to notify the owners of the property to take charge of it, and to recover from the owners the expense of caring for the property if not called for in compliance with such notice.
When the bill was served upon the city and Mr. Bennett, the property ceased to be subject to the control or demand of either the City of Jackson, the Mighty Haag Shows or Mrs. E. Haag (Mrs. Alice Haag). It was then in the custody of the court. It is argued by the appellant that the city had a right to deliver the property to the sheriff and acquit itself of any expense if it did so. We do not find any authority in an attachment in chancery proceeding for the sheriff to take charge of the property. Attachment in chancery is different from attachment at law, for an attachment at law requires the sheriff to take charge of the property unless either the complainant or the defendant gives bond prescribed by law, and there is no such provision in the law of attachment in chancery and no such proceeding is contemplated. The two methods of attachment are entirely different. See Craig v. Gaddis, 171 Miss. 379, 157 So. 684. It is true that the chancery court has the power, incident to its jurisdiction, to make appropriate orders for the custody and care of property impounded under attachment proceedings so as to preserve the subject matter of litigation until the final determination thereof; but, the complainant, having instituted the suit, must be the one to pay this expense, and, if on the final decree, the complainant does not get a judgment or decree relieving it of the responsibility, it continues to be liable for the expense incident and necessary to the preservation and care of the property. In the case before us, it would have been practically impossible for the sheriff to have taken charge of the property on account of the wild and dangerous nature of the animals involved, and owing to the absence of any place provided for the sheriff to keep such property pending litigation. Had the court made an order at the instance of the complainant, or of the defendant, it would have been necessary to have secured the equipment in possession of the city, and the expense of caring for the animals pendente lite would have been charged against the animals or to the complainant.
It turns out, in the present case, that the attachment for the complainant was a fruitless effort to collect its debt. It did not choose to take charge of the property and foreclose under its deed of trust as it might have done, but rather chose to attach in chancery on the theory perhaps that it would be relieved of the expense of caring for the animals during the pendency of the litigation; but, in this, they were mistaken. The animals and truck were seized at its instance and for its benefit, and it did not choose to protect its interest by bidding a higher sum than the amount bid by the city. We find no error in the proceedings of the court below, and the judgment is affirmed.
Affirmed.