76 Miss. 478 | Miss. | 1898
delivered the opinion of the court.
In Dollman v. Moore, 70 Miss., 267, the liability was an ascertained fixed debt, and the garnishee could and did answer, admitting that it owed the sum certain due.
In Gordon v. Warfield, 74 Miss., 557, the attachment in chancery was levied on land of the nonresident defendant, and it was held that in such case the chancery court had jurisdiction to inquire into and ascertain the liability arising ex delicto even, and enter a decree therefor, as between the original parties, and decree a sale of the defendant’s land to pay the amount of the liability when ascertained. There was no garnishment in that case, and no question, of course, arose as to the right to use garnishment process in a case of alleged liability where the damages are unliquidated.
In Dollman v. Moore the garnishee could easily answer, because the debt was fixed. How could the garnishee answer in a case like this, when the question whether it owes anything, and if anything, what amount, is unknown, and cannot be known till a judgment shall have been rendered in the principal case ? The liability here is one that is in its very nature not subject to garnishment at law or in equity. It is not that equity will permit no wrong to exist without a remedy, but that though equity permits no wrong to exist without a remedy, it still exacts the use of the remedy appropriate to right the wrong. Because there is, in a given case, no remedy at law, equity does provide for such case a remedy, but it provides for such case a remedy appropriate to that case. That is the distinction clearly taken by learned counsel for the appellee and upheld by the chancellor. The bill is framed under § 487 of the code of 1892. But whether framed under that section or under the general equity power of the court, what it distinctly seeks to do is to use certain particular process—garnishment—to hold a liability arising ex delicto, the amount of which is unascertained, when the very nature of the writ and of the liability shows that garnishment is not so usable.
Affirmed.
