Opinion
No. 41790.
February 6, 1961.
1. Appeal — judgment against garnishee could not stand where judgment in main action was reversed.
Headnote as approved by McElroy, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, Judge.
Morse Morse, Gulfport; Watkins Eager, Jackson, for appellant.
I. A writ of garnishment can only reach an existing debt to the defendant. It cannot reach a claim of the defendant against the garnishee in tort not reduced to judgment, this not being a debt within the meaning of the statute. Blair v. Kansas City, M. B.R. Co., 76 Miss. 478, 24 So. 879; Chittick v. State Farm Mutual, 170 F. Supp. 276; Craig v. Gaddis, 171 Miss. 379, 157 So. 684; Duncan v. Lumbermen's Mutual (N.H.), 23 A.2d 325; Farmer's Gin Co. v. St. Paul Mercury Indem. Co., 186 Miss. 747, 191 So. 415; Ford v. Mutual Life Ins. Co. of N.Y., 194 Miss. 519, 13 So.2d 45; Francis v. Newton (Ga.), 43 S.E.2d 282; Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Grace v. Pierce, 127 Miss. 831, 90 So. 590; Hinds v. Miller, 52 Miss. 845; Lewis v. Barnett (Kan.), 33 P.2d 331; Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399; Wessing v. American Indemnity Co., 127 F. Supp. 775; Williams v. Gage, 49 Miss. 777; 38 C.J.S. 266.
II. At the time of the issuance of the writ of garnishment and of the filing of the answer thereto Mrs. Meaut, the original defendant, could not have sued the garnishee on the policy of insurance because of the pendency of an appeal by Mrs. Meaut and, therefore, no funds were bound in the hands of the garnishee. Ancateau v. Commercial Casualty (Ill.), 48 N.E.2d 440; Bean v. Bean, 166 Miss. 434, 147 So. 306; Craig v. Gaddis, supra; Dibrell v. Neeley, 61 Miss. 218; Fidelity Casualty Co. v. Fordyce (Ark.), 41 S.W. 420; Ford v. Mutual Life Ins. Co. of N.Y., supra; Grant v. Sun Indemnity Co. (Cal.), 73 P.2d 615; Howell v. Moss Point Furn. Co., 136 Miss. 399, 101 So. 559; Illinois Cent. R. Co. v. Adams, 78 Miss. 977, 30 So. 44; Jennings v. Ward (Cal.), 300 P. 129; McNeill v. Roache, 49 Miss. 436; Russell v. Clingan, 33 Miss. 535; Seaborn v. Preferred Acc. Ins. Co. (Okla.), 246 P.2d 365; Southern Pacific R. Co. v. Lyon Co., 99 Miss. 186, 54 So. 728; Travelers' Ins. Co. v. Inman, supra; Tucker v. State (Ky.), 132 S.W.2d 935.
III. The court below committed error in denying the garnishee-defendant's motion at the conclusion of the testimony of the plaintiff to exclude the testimony of the plaintiff on the ground that plaintiff had wholly failed to prove that the garnishee-defendant had failed to exercise good faith in investigating and negotiating settlement of the claims of Langlinais against Mrs. Meaut. Because of the absence of any such proof this cause must be reversed and judgment rendered for the appellant here insofar as the $5,000 excess over the limits of the policy is concerned. American Casualty Co. v. Howard, 187 F.2d 322; Broadhead v. Enochs, 162 F. Supp. 897; Farmers' Gin Co. v. St. Paul Mercury Indem. Co., supra; Georgia Casualty Co. v. Cotton Mills Products Co., supra; Mayfield Motor Co. v. Parker, 222 Miss. 152, 75 So.2d 435; Metropolitan Life Ins. Co. v. Hall, 152 Miss. 413, 118 So. 826; Newport Industries v. Crosby Naval Stores, 48 F. Supp. 442; Osborne v. Thomas, 221 Miss. 682, 74 So.2d 757; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Willoughby v. Pope, 101 Miss. 808, 58 So. 705.
Donald W. Cumbest, Pascagoula; Walter Nixon, Biloxi, for appellee.
I. Reply to appellant's Point I. Employers' Liability Assur. Corp. Ltd. of London v. Bodron, 65 F.2d 539, 78 L.Ed. 600, 54 S.Ct. 208; Georgia Casualty Co. v. Cotton Mill Products Co., 159 Miss. 396, 132 So. 73; Farmer's Gin Co. v. St. Paul Mercury Indem. Co., 186 Miss. 747, 191 So. 415; Hovey v. McDonald, 27 L.Ed. 888, 3 S.Ct. 136.
II. Reply to appellant's Point II. Commercial Casualty Co. v. Skinner, 190 Miss. 533, 1 So.2d 255; Employers' Liability Assur. Corp. Ltd. of London v. Bodron, supra; S. W. Construction Co. v. Wood, 194 Miss. 831, 13 So.2d 625.
III. Reply to appellant's Point III. American Mutual Liberty v. Cooper, 61 F.2d 446, 77 L.Ed. 1483; Auto Mutual Indem. Co. v. Shaw (Fla.), 184 So. 852; Ballard v. Citizen Casualty Co., 196 F.2d 96; Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 66 A.L.R. 2d 1202; Johnson v. Hardware Mut. Cas. Co., 108 Vt. 269, 187 A. 788; Kleinschmit v. Farmers Mut. Hail Ins. Assn., 101 F.2d 987; National Mutual Cas. Co. v. Britt, 203 Okla. 175, 200 P.2d 407, 218 P.2d 1039; Olympia Fields Country Club v. Banker Indem. Ins. Co., 325 Ill. App. 649, 60 N.E.2d 896; Anno. 40 A.L.R. 2d 212.
This appeal is from the Circuit Court of Jackson County, Mississippi, on a writ of garnishment on the judgment of the appellee in the case of Mrs. Lucy D. Meaut v. Lewis v. Langlinais, No. 41,629, which is being reversed and remanded today.
These cases were consolidated by order of the Court and are to be determined together, and since Meaut v. Langlinais, No. 41,629, is reversed and remanded, this case is reversed and dismissed.
(Hn 1) In Moody Williams v. Dye, 125 Miss. 770, 88 So. 332, this Court said: "We are of the opinion the true rule is that a judgment against a garnishee cannot stand where the judgment in the main action has been reversed. The garnishment proceedings grow out of and are incidental to the main judgment, and a judgment against a garnishee rests upon the main judgment which gives it life, and when the main judgment is annulled the garnishment judgment must fall with it. The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and if there be no main judgment to enforce because of its annulment, then the purpose and life of the judgment against the garnishee is ended. Therefore the judgment against the appellee Dye, as garnishee in the original suit, was extinguished when the main judgment was annulled by reversal of the Supreme Court. 4 C.J. 1205 and notes; 2 R.C.L. 271." See also Grace v. Pierce, 127 Miss. 831, 90 So. 590.
This case is therefore reversed and dismissed.
Reversed and dismissed.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.