Copiah Hardware Co. v. Meteor Motor Car Co.

101 So. 375 | Miss. | 1924

Ethridoe, 'J.,

delivered the opinion of the court.

The appellant, when was plaintiff in the court below, sued out an attachment against the Meteor Motor Car •Company, alleged to be a nonresident of the state — a resident of Piqua, Ohio — and a writ of garnishment was served on the Merchants’ & Planters’ Bank of Hazlehurst, Miss. No personal summons was served upon the •defendant or any agent within this state, but a notice was published in the Hazlehurst Courier, a newspaper published at Hazlehurst, Miss., addressed to the Meteor Motor Car Company of Piqua, Ohio, commanding it to appear before the circuit court of Copiah county on the third Monday of November, 1923, to plead to said action. No property was seized belonging to the defendant other than the funds alleged to be in the said bank at Hazlehurst, Miss. On the fifth day of September, 1923, the Piqua Savings Bank Company of Piqua, Ohio, filed an affidavit in the circuit court in said cause reciting the filing of said suit, and the issuance of writ of garnishment, based on the said attachments, by which the Merchants’ & Planters’ Bank of ITazlehurst, Miss., was summoned as garnishee, and reciting that the said Merchants’ & Planters’ Bank, as garnishee aforesaid, now has in its possession the sum of one thousand two hundred and fifty dollars, which it is charged in the attachment suit aforesaid belongs to the Meteor Motor Car Oompany, the defendant therein, and is due to the Meteor Motor Car Company aforesaid by the Merchants’ & Planters’ Bank. The said writ of attachment and garnishment issTied, has been executed, and affiant says that the said money, to-wit, the sum of one thousand two hundred and fifty dollars, now in the hands of said 'Merchants’ & Planters’ Bank of Hazlehurst, is the money and property of the said Piqua Savings Bank Company, and is not the money or property of the said Meteor Motor Car Company. Bond was given hy the claimant in the sum of two thousand five hundred dollars with the Fidelity & Deposit Company of Baltimore, Md., a surety, conditioned to prosecute this claim to effect, and if it failed therein to pay to the said Copiah Hardware Company all such damages as may be awarded against the said Piqua Savings Bank Company, and deliver and pay over to the sheriff1 of Copiah county the sum of one thousand two hundred and fifty dollars, etc. The Merchants’ & Planters’ Bank of Hazlehurst did not file an answer to the writ of garnishment. On the 19th day of November, 1923, the Copiah Hardware Company filed a motion to make up issue, reciting:

“Now comes the1 Copiah Hardware Company, plaintiff in the above styled and numbered cause, and shows unto the court that the Piqua Savings Bank of Piqua, Ohio, has filed a claimant’s affidavit, and is claiming the funds garnisheed as the funds of the Meteor Motor Car Company, to belong to said claimant bank, and that plaintiff joins issue upon said claim, and denies that the said funds garnisheed belonged to the Piqua Savings Bank, and moves the court to make up said issue and direct the trial of said cause. ”

On the 11th day of December, 3923, the Copiah Hardware Company filed a motion in the said cause to strike the claim of the Piqua Savings Bank from the files, and for judgment against the said claimants. On December 15, 1923, the following judgment was entered in said cause:

‘ ‘ This cause coming on to be heard, came the plaintiff by its attorney, and the defendant being solemnly called, came not but wholly made default, and the court on the plaintiff’s motion having heard and considered the matter, it is ordered by the court that the plaintiff have and recover of the defendant, in this behalf; and thereupon came a jury of good and lawful men, to-wit, S. K. Fair-child and eleven others who were duty empaneled and sworn according to law, upon their oaths say, ‘"VVe, the jury, find for the plaintiff and assess plaintiff ’s# damages at four hundred dollars.’ And the same having been considered by the court, it is ordered by the court that the plaintiff have and recover of the defendant the sum of four hundred dollars, the amount of its damages assessed as aforesaid, besides the cost in this behalf expended. It further appearing to the satisfaction of the court that the Merchants’ & Planters’ Bank was duty summoned as garnishee herein, and has failed to appear and answer as required by law, and the cause having been considered by the court, it is ordered by the court that the plaintiff have and recover of and from the Merchants’ & Planters’ Bank, as the garnishee herein, the sum of four hundred dollars, the amount of plaintiff’s judgment as aforesaid with interest thereon from this. It further appearing to the court that heretofore an affidavit was filed by the Piqua. Savings B>ank of Piqua, Ohio, as claimant, and a. bond for the sum of two thousand five hundred dollars was given with the Piqua Savings Bank 'Company as principal, and the Fidelity & Deposit Company of Baltimore, Md., as surety, payable to the plaintiff, the Copiah Hardware Company, and a motion having been first filed by the plaintiff to strike from the files the claim of the Piqua Savings Bank, and the motion having been sustained, it is ordered said claimant and sureties on its bond as such claimant, are and be and the same discharged and released. It is further ordered that all costs of this suit be taxed against the garnishee for which let execution issue. ’ ’

From this judgment the plaintiff, the appellant here, prosecuted an appeal,, complaining that it was error in the said judgment to relieve the claimant and sureties on its bond from liability to plaintiff. Tbe claimant and tbe Merchants ’ & Planters ’ Bank prosecute cross-appeals attacking the validity of the above judgment. Among the grounds of attack on cross-appeal is the ground that the post office of the defendant as published in the notice was Pique, Ohio, and not Piqua, Ohio, where the defendant really lived. Another ground is that the judgment is void, because entered by default without personal summons being” served upon the defendant at the return term of the process, and therefore that there could be no valid judgment against the Merchants’ & Planters Bank or against the claimant.

On the direct appeal we think the court should not have stricken from the files the claimant’s issue and released the claimant and its bond from liability.

It is true the claim was prematurely filed, but the facts that the Merchants’ & Planters’ Bank held the funds garnisheed and involved in the controversy were set forth, and if the garnishee answered it could then, after the determination of the issue between the plaintiff and the garnishee, have been heard in the controversy. It is true that the garnisheed bank not having* answered became liable under the law1 to the plaintiff for the amount of his claim, when he had established his claim against the principal defendant. However, the issue between the plaintiff and the defendant could not be disposed of at the return term, under section 788 of the Code of 3906 (sectiqn 566, Hemingway’s Code), providing that judgment by default shall not be entered at the return term unless it appear that the process had been served personally on the defendant. This was distinctly held in the case of Alexander v. Porter, 88 Miss. 585, 41 8o. 6, and in J. B. Colt Co. v. Ward, (Miss.), 99 So. 676.

We think under these authorities that the whole proceeding1 in the circuit court was premature, and that the defendant had until the next term of court ta prepare for trial, and have a hearing at that term of the court. In our opinion the misspelling' of the post office of the defendant does not avoid the judgment because it falls within the doctrine of idem sonans. The sound is practically the saiqe, though the spelling is slightly different. Therefore the judgment on both direct and cross appeal will be reversed, and cause remanded fofi further proceedings.

Reversed and remanded.

On Suggestion oe Error.

Ethridge, J.

In our former opinion, we stated that the claimant, the Piqua Savings Bank, prosecuted a cross-appeal. This was an erroneous statement, as it did not prosecute a cross-appeal. It had filed a claim to the móne3r g.arnished and had given bond and procured the amount of money which the garnished bank held. This error of statement, however, does not change the .result of the former holding'. The claimant’s issue should not have been disposed of until the final disposition of the issue between the plaintiff' and the defendant and, also, the garnishee. The judgment taken, being before the law authorized it to be taken, was void, and it necessitated a complete reversal of the cause and reinstatement of the status quo in the court below.

Suggestion of e¡ ror overnded.