45 Fla. 256 | Fla. | 1903
Lead Opinion
On July 6th, 1896, The Charleston Lumber and Manufacturing Company filed its declaration in assumpsit against S. S. Leonard. A final judgment by default was entered against Leonard for $504.49 damages and costs $3.43.
On September 13th, 1897, the Charleston Lumber and Manufacturing Company filed the affidavit of its attorney, F. P. Fleming, Jr., as a basis for garnishment, alleging a balance of $200 to be due, and a praecipe for garnishment to be directed to Duval County.
A writ of garnishment was issued and duly served upon the chairmdn of the board of county commissioners of said county, September 15th, 1897.
On November 1st, 1897, default in sftd garnishment proceedings was entered by the clerk against the County of 1 )uval for want of appearance or answer.
On November 5th, 1897, the clerk issued a writ of scire facias to said garnishee notifying it that in the suit of 'the Charleston Lumber and Manufacturing Company against S. S. Leonard default had been entered against it as garnishee, and warning it to show cause December 6th, 1897, why final judgment should not be entered upon said default, which writ was duly served on Duval county on the same day.
On December 6th, 1897, judgment was rendered by the court and entered by the clerk wherein and whereby the foregoing facts were recited and a final judgment entered against Duval county as garnishee in the sum of $200.
On May 6th, 1898, a writ of error from this court to
Two questions are presented in the' briefs of the respective parties, first, whether under the law of Florida a county is liable to be garnisheed; second, whether in this case, the county of Duval having permitted a default against itself, for want of appearance and answer, can in this court, for the first time, challenge the judgment entered against it, and from which it appeals.
Section 106(5 of the Revised Statutes as amended by Chapter 4136, laws of 1893, provides: “Every person who shall have brought a suit in any court of this State against any person, natural or corporate, shall have a right to a writ ^f garnishment under the circumstances and in the manner hereinafter provided, to subject any in debtednesss due to the defendant by a third person, and any goods, moneys, chatties or effects of the defendant in the hands, possession or control of a third person.. The officers, agents and employes of any companies or corpora-, tions shall be, as regards such companies or corporations, third persons, and as such shall be subject to garnishment, after judgment against such companies or corporations.”
Section 1, Chapter 1, Title 1,\ First Division of the Revised Statutes, provides: “In determining the meaning of these Revised Statutes * * * the word ‘person’ pray- extend to and be applied to a corporation.”
In the case of Martin v. Townsend, 32 Fla. 318, 13 South. Rep. 887, in determining the mode in which a deed should be executed by county commissioners, this court used this language: “Boards of county commissioners
In section 4, ibid., this author further discusses the generic differences- between municipal and g-wasi-public corporations, but in the latter part of section 5 he says: “as popularly and lossely used, the term municipal corporation frequently includes public guasi-corporations such as couhties. school districts,” etc. It will be observed that in some of the cases hereinafter referred to the term
It is stated in the text books that by the weight of authority municipal corporations (including therein counties) are not subject to garnishee-process, unless the right to so subject them is conferred by clearly expressed legislation. 2 Beach on Public Corporations, Sections 1654 and 1655; 1 Dillon on Municipal Corporations, Sec. 101 and note 1; Drake on Attachment, Sec. 516. There is, however, a conflict of authority on this question as will be seen from the foregoing authorities. The decisions on this question are very numerous, and a critical examination of each one of them would lead to great prolixity. The majority of the cases cited by Drake are against the right of garnishment. Of those cited by him in favor of the right, the cases of Whidden v. Town of Portsmouth, 5 N. H 13, is based on a statute which provides “that when any corporation or l>ody politic within this State shall be possessed of any money, goods, etc., of any debtor, such corporation or ~body politic may be summoned ás trustee of such debtor, etc., etc.”
In Connecticut it is held that the word corporation embraced towns, and subjected them to garnishment process. Bray v. Town of Wallingford, 20 Conn. 416. In the case Adams v. Tyler, Trustee, 121 Mass. 380, it is held that a county is chargeable with trustee process, inasmuch as the statute makes a county a corporation for the purpose, among others, of suing and being sued, making contracts, etc., and inasmuch as the legislature had indicated its intent that counties should be subject to garnishee process by eliminating from the statute án exception
The next and only other question to be determined is whether by failing to appear or answer the garnishment process and permitting a default judgment against itself it waived the right to contest in this court the judgment appealed from.
The defendant in error contends that the exemption from garnishment proceedings claimed by the plaintiff in error, can not be raised for the first time in this court. In support of this view the following Florida- cases are cited: Parker v. Henry, 8 Fla. 53; Sammis v. L’Engle, 19 Fla. 800; Peck v. Spencer, 26 Fla. 23, 7 South. Rep.
It is generally held in this country that garnishment is a purely statutory proceeding and can not be pushed :in its operation beyond the statutory authority under which it is resorted to. Drake on Attachment, Sec. 451 (a) ; Ency. PI. & Pr. Yol. 9, p. 809. In Mississippi, a county, if its board of supervisors object, can not be guarnisheed either at law or in equity. If the county does not object to the garnishment, the debtor can not. It is held that the courts have jurisdiction of agarnishment against a county, but must sustain an objection made by the board of supervisors, the board being the judge whether or not the proceeding will restrict the performance of- its public functions. McBain v. Rodgers, 29 South. Rep. 91; Dollar v. Allen-West Commission Co., 78 Miss. 274, 28 South. Rep. 876; Dollman v. Moore, 70 Miss. 267, 12 South. Rep. 23. In Board of County Commissioners of Las Anamas Co. v. Bond, 3 Col. 411, the court decided that generally and upon considerations of public policy a municipal corporation is not subject to garnishment. The exemption may, however, be waived by appearance and submission to liability. “Here the judgment expressly recites that no one appeared on behalf of the board of county commissioners; whether process was served on the board or not is unimportant. If it did not appear and waive the ex-
The contention by defendant in error that because a county can be sued it is, therefore, liable to garnishment, is met in several of the cases which have been cited, and especially in the last one, and the holding is adverse to the contention in all of them except one or two. In our view by the great weight o.f authority, and upon principles of public policy, a counity is not in this State subject to garnishee process, and no valid judgment can be rendered against it in such a proceeding.
The judgment of the Circuit Court is reversed.
Dissenting Opinion
dissenting.
On August 22, 1896, defendant in error obtained judgment in the Circuit Court of Duval county against S. S. Leonard for $504.49, and on September 13, 1897, after complying with the requirements of the garnishment statutes, caused to be issued and served upon the county of Duval a writ of garnishment alleging in the affidavit therefor that $200 remained due on the judgment. The county failed to appear, in consequence of which a default was entered, and thereafter a scire facias was duly issued to it and served as required by the statute. Thereafter, on December 6, 1897, the county having failed to show cause as required by the scire facias, the court rendered judgment against it in the sum of $200. From such judgment the county sued out this writ of error on May 6, 1898. The only error assigned'is “that the said county is not subject to be garnisheed as was done in said cause.” It is conceded in the brief that the judgment is valid and binding, unless the law is that “a county — quasi a municipal corporation — is not liable to garnishment.” This proposition is the only one argued or insisted upon for reversal of the judgment. *
The writ of garnishment has, from the earliest period of the territorial history of this State, been authorized by statutes enacted from time to time, to subject indebtedness due defendants by other persons, and goods, moneys, chatties or effects of such defendants in the hands of such persons, to the payment of judgments against them, upon application of judgment creditors. See acts of 1822, p. 14; Duval’s” Comp. Sec. 17 p. 11; Thompson’s Dig. p. 371. In 1845 the remedy was extended to plaintiffs in attachment even before judgment obtained, Section 12 p. 550,
Counties are and have been from the earliest .period recognized as political subdivisions of the State. The present constitution recognizes and provides for such political subdivisions, and provides for county commissioners and other officials of the several counties. By Chap. 1882, laws of 1872, it was provided that the county commissioners should “represent the county in the prosecution and defense of all legal causes.”. Sec. 578 Rev. Stats. It may be conceded that this statute did not extend to counties the writ of garnishment theretofore provided for, but in 1881 another act. was passed which, as subsequently incorporated into the Rev. Stats., provides that “the county commissioners of the several counties shall sue and be sued in the name of the county of which they are commissioners.” It further provides that a change in the persons composing the board shall not abate the suit, but that it may be proceeded with as if such change had not taken place. While this legislation may not constitute them corporations strictly speaking — it does recognize them as distinct entities capable of suing and of being sued in like manner as corporations. The word
The rule I contend for is this: that the statutes of this State authorize counties and municipal corporations to be sued in garnishment, but that this general authority to sue does not repeal the rule of public, policy which forbids it in case such garnishment will embarrass them in their governmental functions. This principle is expressly ruled in Lewis v. City of Denver, 9 Colo. App. 328, 48 Pac. Rep. 317, and Troy Laundry & Machinery Co. v. City of Denver. 11 Colo. App. 368, 53 Pac. Rep. 256, wherein it was held that although the statute expressly authorized municipal corporations to be garnisheed, yet that this statute would not be held to authorize garnishment of the salary of a municipal officer because public policy forbade it. I think it finds support also in the decisions of this court in Post v. Love, 19 Fla. 634, and Crescent Ins. Co. of New Orleans v. Bear, 23 Fla. 50, 1 South. Rep. 318. In those cases it was held that garnishment does not lie against an executor during the progress of the administration of an estate to reach a legacy bequeathed to a debtor, and that a debt due a partnership can not be garnished by a creditor of one of the parties, although the statute authorizes the writ to issue against “any person
In the present case the county made no defense. It does not affirmatively appear upon the fact of the record that the debt sought to be garnished was one which was exempt from garnishment upon grounds- of public policy, and the default admits that it was not. I think, therefore, that the judgment ought to be affirmed. I regard the principle decided in this case as an important one, and sufficiently broad to exempt cities and towns from garnishment, and to declare absolutely void any judgment against municipal corporations in garnishment proceedings, because the courts have no jurisdiction to render them. Because of its importance and the great hardship upon creditors of withdrawing from the grasp of process in their favor all debts due by cities, towns and counties, of whatever nature, I have thought best to express my views at length.
In my opinion the judgment ought to be affirmed.