Grace v. Pierce

90 So. 590 | Miss. | 1921

Cook, J.,

delivered the opinion of the court.

■ In the year 1914 A. J. Scruggs filed suit against, the McShane Cotton Company seeking to recover usury that had been paid to said company. In September, 1919, a ■final decree was entered in fa-vor of complainant, and an appeal from this decree was affirmed by this court. Thereafter the McShane Cotton Company filed a bill of inter-pleader against various parties alleging that the complainant was ready and anxious to pay the amount of the indebtedness under said decree to any person or persons entitled thereto, but that the various parties defendant were asserting claim to the amount of money due under the decree, and that it was necessary to stay the execution and to summon the several defendants to appear and propound their claims. The bill undertook to set forth in detail the claim of each defendant, and several of the defendants answered the bill and propounded their claims. The complainant paid the money into court and was discharged, and upon the trial of the cause there were three separate decrees entered adjudicating the rights of the several defendants who had propounded their claims. There were appeals prosecuted from two of these decrees, and, while there is but one record filed in this court, these appeals are separately docketed, the first being No. 22270, and styled M. B. Grace v. M. F. Fierce, and the other being No. 22271, and styled Mrs. Cora Scruggs v. Robert Herman and G. A. Wilson, Jr. In the disposition of these two appeals we deem it necessary to set out only the issues involved between these, respective claimants who are parties to these appeals.

It was alleged in the bill of interpleader that M. F. Pierce, who, as attorney for A. J. Scruggs, had filed the original suit against the McShane Cotton Company, claimed a fifty per cent, interest in the fund in controversy by virtue of a written assignment dated February 7, 1916, and that M. B. Grace was asserting some right to’ share in the interest claimed by Pierce. Appellant M. B. Grace filed an answer to this bill and made his answer a cross-bill against the claimant, M. F. Pierce. In his answer and cross-bill Grace alleged, in substance, that on the 28th day of April, 1914, M. B. Grace and M. F. Pierce formed a general partnership for the practice of law; that under the terms of the partnership agreement the net profits were to be divided in the proportion of two-thirds to Grace and one-third to Pierce; that after the formation of this partnership A. J. Scruggs employed the firm to file the original suit against the McShane Cotton Company upon a contingent basis of fifty per cent, of the amount recovered ; that upon this agreement the business was accepted by Grace for the firm; that, the said M. B. Grace having some unfinished business for the McShane Cotton Company, it was agreed between Grace and Pierce that the bill of complaint to be filed should be signed by Pierce as counsel for complainant, but that the case should be partnership business; that said suit was prosecuted to a successful conclusion; that the law firm of Grace & Pierce was entitled to one-half of the recovery in the proportion of two-thirds to Grace and one-third to Pierce. Other matters set up in the cross-bill are not material to a decision of the question here involved.

Appellee M. F. Pierce filed an answer to the bill of inter-pleader in which he propounded his claim to fifty per cent, of the amount in controversy, and also filed an answer to the cross-bill in which he admitted the partnership with appellant, but denied all other material allegations of the cross-bill. This answer averred, in substance, that the suit of Scruggs v. McShane Cotton Company was instituted by Pierce just a few days prior to the dissolution of the firm of Grace & Pierce; that on account of the fact that Grace had some unfinished business for the McShane Cotton Company he declined to accept employment in the case; that the said Scruggs employed Pierce individually to represent him; that .it was distinctly understood between Grace and Pierce, and also by the client, that Grace would not accept employment in the matter and that it Avould not be accepted as partnership business; that the said Grace had nothing whatever to do with the filing of the bill of complaint; that the suit was pending in the courts for more than six years, and Grace never at any time had any part in the prosecution thereof; and that he was not entitled to any part of the fee arising from a successful conclusion thereof.

Upon the issue of fact thus presented much testimony was introduc'd, and at the conclusion thereof the chancellor entered a decree denying appellant Grace any relief, and awarding the appellee Pierce fifty per cent, of the amount in controversy. There is some conflict in the testi-money, but we think the decree is amply supported by the testimony, and that the chancellor reached the right conclusion. The decree will therefore be affirmed.

Upon the issue presented by the appeal of Mrs. Cora Scruggs the uncontroverted facts as shown by the pleadings and proof are substantially as follows: In February, 1911, appellees Robert Herman and G. A. Wilson, Jr., recovered judgments against the said A. J. Scruggs; that on March 24, 1917, writs of garnishment were issued on each of said judgments returnable on April 24, 1917; that these garnishment writs were served on the McShane Cotton Company on the same day; that no answer was ever filed by the garnishee, but by agreement between the judgment creditors and the garnishee, the writs of garnishment were continued indefinitely to await the final determination of the Scruggs suit; that by virtue of a written assignment dated December 8, 1920, and duly acknowledged the same day, appellant claims an undivided one-fourth interest in the proceeds of the .judgment against the Mc-Shane Cotton Company; and that appellant was not a party to any agreement that the said garnishment proceeding should lie dormant pending the conclusion of the original suit. The answer of appellees averred, and it is their contention here, that the judgment in their favor constituted a prior lien on all the property of the said Scruggs, and that they had the right to insist upon and enforce such liens from and after the date of the service of the writs of garnishment issued upon such judgments. The answer of appellant averred that no lien in favor of ap-pelees existed against the fund in controversy by virtue of such writs of garnishment for the reason that the judgments on which the writs of garnishment were based were then barred by the statute of limitation.

■ The judgments rendered in 1911 were long since barred by the statute of limitation, and the issuance of writs of garnishment before the bar of the statute attached did not serve to extend or keep alive the lien of these judgments. In Street v. Smith, 85 Miss. 359, 37 So. 837, this court said:

“And as the judgment lien is created by the final decision of a court, so it can only be renewed or extended by a similar process. The lien of a judgment can he extended by the filing of another suit upon the judgment before the expiration of seven years from the date of the rendition thereof, and in no other manner.”

A valid judgment is essential to the- validity of a garnishment proceeding, and when a judgment upon which a writ of garnishment is founded in extinguished by the bar of the statute, the garnishment proceedings likewise fail. No effort was made to revive the judgments upon which these 'garnishment proceedings were based, the garnishments had been allowed to lie dormant until the foundation upon which they rested had been swept away, and thereafter appellees had no valid claim to the funds in controversy. In Moody & Williams v. Dye, 125 Miss. 770, 88 So. 332, this court said:

“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.”

The decree of the court below recites that there was an agreement between the Judgement creditors that appellees should have a prior claim to twenty-five per cent, of the fund in controversy, but appellant was not a judgment creditor, and it appears that she was not a party to such agreement, and we think the decree awarding appellees twenty-five per cent, of the money in court is erroneous.

.The decree in the case of M. B. Grace v. M. F. Pierce, numbered 22270, is affirmed. The decree in the case of Mrs. Cora Scruggs v. Robert Herman and G. A. Wilson, Jr., number 22271, is revised, and judgment will be entered here for appellant.

Affirmed wnd reversed.