Bernheim Bros. & Uri v. Brogan

66 Miss. 184 | Miss. | 1888

Cooper, «1.,

delivered the opinion of the court.

Bernheim Bros. & Uri brought suit by attachment against their debtor, T. O’Flinn, and summoned John T. Brogan to answer as garnishee. The garnishee answered that he was not indebted to the defendant, and had none of his effects in his hands. This answer was controverted by the plaintiffs (who had recovered judgment against the defendant in attachment), and on the trial the issue was found in favor of Brogan. Thereupon he moved the court to allow him an attorney’s fee of two hundred and forty-five •dollars as compensation for the expense to which he had been put •by being forced to defend the issue made on his answer as garnishee, and the court, finding as a fact that this was a reasonable fee, and that the case was an “ exceptional one,” within the meaning of § 2448 of the code, gave judgment for that sum in his favor against the plaintiffs. From that judgment alone this appeal is taken. No bill of exceptions was taken setting forth the character of the controversy between the plaintiffs and the garnishee, and in support of the judgment of the court. We must assume that a proper showing was made for the allowance, if any case could exist under the circumstances named in which it could be made.

In the recent case of Senior & Sons v. Brogan, ante, page 178, we said that the statute could in no event warrant the allowance of an attorney’s fee for defending an issue on the answer of the garnishee where the facts showed that the controversy was as to the bona Jides of a transaction between the defendant in attachment and the garnishee. We purposely omitted in that case to decide whether the statute was broad enough to permit the allowance of the attorney’s fee, where the plaintiff' without probable cause, but willfully and unjustly, harassed the garnishee by forcing upon him the necessity of defending an issue on his answer. We are now satisfied and so decide, that the statute has no application to such controversy. It declares that, “ thé garnishee shall be allowed for his attendance, out of the debt or effects in his possession, or against the plaintiff in attachment, in case there be no debt or effects in his possession, provided he shall put in his answer at the return term of the attachment, within the time prescribed by law, the pay and mileage of a juror, and in exceptional cases rendering it proper, the court may allow the garnishee reasonable compensation additional to the foregoing, and to be obtained in the same way.”

The additional compensation, it will be observed, is to be obtained in the same way, i. e., out of the debt or effects in his hands if there be any, and if not out of the plaintiff in attachment. The manifest purpose of the section is to allow reasonable compensation to the garnishee as garnishee responding to the command of the court to answer its process. When he has put in his answer and an issue is taken upon it he thereafter stands as a litigant in the court defending his own against the claim of his adversary, and for expenses in so doing he is no more entitled to recover compensation in the shape of attorneys’ fees than are other litigants. For having his answer as garnishee prepared by counsel; for preparing a petition for interpleader in cases where such course is necessary to-be taken; for securing a proper judgment of the court discharging him where his answer is not controverted ; for advice as to the validity of the judgment against the defendant who has not been personally served with process and has not appeared in court, as to which the garnishee must be advised at his peril, the allowances-may within the meaning of the law be made. But for what is done by him after his answer has been filed and controverted he is not entitled to compensation, for he then acts as defendant and. not as garnishee.

Reversed, motion overruled and judgment here for appellants„