Illinois Central Railroad v. Badley

| Miss. | Mar 15, 1909

Fletcher, J.,

delivered the opinion of the court.

One Fletcher sued out an attachment against Homer Yernon, seeking to collect an indebtedness of $25, and by proper averments had the appellant railroad company summoned as garnishee. The railroad company answered, and admitted an indebtedness of $63.17, but suggested that Yernon would probably claim this money as exempt. The company further suggested that appellee, Badley, claimed the money under an assignment. TJpon the filing of this answer, Badley appeared and claimed the fund. No summons was ever issued to Yer-non, nor was he ever notified in any way of the pendency of the proceeding. Fletcher seems to have abandoned his suit entirely, and the court thereupon rendered judgment against the garnishee in favor of the claimant Badley for the full amount of the indebtedness admitted. The railroad company prosecutes this appeal, insisting that the judgment rendered affords the garnishee no protection against a subsequent demand by Yernon, who has never been summoned as the law directs

Section 2346 of the Code of 1906 provides: “Any garnishee who answers admitting an indebtedness, or the possession of property due or belonging to the defendant, may show by his answer that he is advised and believes that the defendant does or will claim the debt or property, or some part thereof, as exempt from garnishment, levy or sale; and, upon the filing of such answer, the clerk or justice of the peace shall issue a summons or make publication, if defendant be shown by oath to be absent from the state, for the defendant, notifying him of the garnishment and the answer, and requiring him to assert his right to -the exemption. Proceedings against the garnishee shall be stayed until the question of the debtor’s right to the exemption be determined. If the defendant fail to apq>ear, judgment by default may be taken against him, adjudging that he is not entitled to the property or debt as exempt; but if he appear, the court shall, on his motion, cause an issue to be made up and tried between him and the plaintiff.” The exemption was duly suggested, and the court was without power to proceed in this cause until a summons had issued notifying the suggested exemptionist of the garnishment proceeding and requiring him to assert his right.

Reversed and remanded.