75 Miss. 753 | Miss. | 1898
delivered the opinion of the court.
It is true, as held in Porter & Macrae v. West, 64 Miss., 548, that the plaintiff in attachment has no right to suggest for the garnishee that a third party claims the fund in the hands of the garnishee, that suggestion being permitted to be made by the garnishee, to protect him against a possible double payment of the debt garnisheed. But the case holds nothing further than that, in order to make such third person a party litigant to the issue, as between the plaintiff and himself, the garnishee in such case not himself making any contest, but paying the money into court and being discharged, the garnishee must suggest that such third party has a claim. Section 2143, code of 1892. In order that the third party may thus become a party to the record, and ‘ ‘ contest with the plaintiff the right to the money, debt or property, ” it is a statutory condition precedent that he must ,be suggested by the garnishee as such claimant,'
Mrs. Bulandi did not contest this issue in the circuit court. The appellant voluntarily did it for her. That issue arose on the traverse of appellant’s garnishment answer, and was whether the money in bank deposited to the credit of Mrs. Bu-landi was, in fact, the money of the debtor in attachment, hex-husband, by reason of a fraudulent transfer of it to her by him. “This special statutory proceeding was borrowed from equity jurisprudence.” Kellogg v. Freeman, 50 Miss., 130. And we think it is settled by Dodds v. Gregory, 60 Miss., 549, and Gregory v. Dodds, 61 Miss., 351, that this inquiry can be made in this proceeding on the travex-se of the garnishee’s answer. The point made here that this is using garnishment process as a bill in equity to set aside a fraudulent transfer, must surely have been considered by the court in 61 Miss., 351. Besides, a careful examination of the authorities has satisfied us that, on principle and authority, the view announced is the sound one. Cases cited by learned counsel for appellant do not sustain this contention. Harris v. Phœnix Ins. Co., 35 Conn., 310, does not touch the question. In Toomer, etc., v. Randolph, 60 Ala., 356, it was held that, in that state in an action
The case of Doggett v. St. Louis, etc., 19 Mo., 203, cited by
The case of Hutchins v. Howley, 9 Vt., 295, is plainly distinguishable on several grounds.
The principle is, of course, limited by the consideration that the garnishee cannot be held for more than he had when served —for funds he had previously parted with — in this proceeding, as held in Feary v. Cummings, 41 Mich., 384.
Ordinarily the plaintiff has no larger right against the garnishee than the debtor has; but in case of a fraudulent transfer by a debtor to a third party, the plaintiff may set it aside, though the debtor, in pari delicto, cannot. Drake on Attach., sec. 458; VanNess v. McLeod, 2 Idaho, 1150.
Affirmed.