Southern Lumber & Manufacturing Co. v. Mallett, 57 So. 548

Southern Lumber & Manufacturing Co. v. Mallett

57 So. 548 | Miss. | 1911

Mayes, C. J.,

delivered the opinion of the court.

There is only one question in this case that needs discussion; all others, we think, having already been settled by this court in several decisions. The appellant was garnished in a justice of the peace court on a judgment recorded by appellee against W. L. McDaniel. Appellant failed to answer on the day required by section 2347 of the Code of 1906, whereupon the justice of the peace rendered judgment for the amount of appellee’s demand, as required by section 2345 of the Code. Subsequently the lumber company appealed to the circuit court, and for the first time undertook to file an answer to the garnishment, which was objected to by appellee, and the trial court sustained the objection and refused to allow the answer to be filed. Appellant excepted to the action of the court, and the case is appealed to this court.

It is argued by appellant that this court held in the case of Mitchell v. Mead, 92 Miss. 596, 46 South. 58, that the ahswer of the garnishee could be filed, for the first time, in the circuit court, and that the above case is in *138conflict with the case of G. & S. I. R. R. Co. v. Ramsey, 54 South. 440; in which last case it is argued that the court held that the answer could not be filed. Section 2347 of the Code of 1906 is clear and positive as to when the answer of the garnishee shall be filed. The case of G. & S. I. R R. Co. v. Ramsey, 54 South. 440, but redeclares the statute. Of course, this section may be waived, and is waived if the party having the right to object to the filing of the answer out of time allows same to be filed without objection, and this was what was done in the case of Mitchell v. Mead, 92 Miss. 596, 46 South. 58. In the Mitchell case the court does not predicate its opinion upon the fact that the statute requires the answer to be on file at a certain time. The opinion of the court does not allude to the statute. The facts in the^ Mitchell case show that the answer was filed in the circuit court for the first time, and allowed to remain on file for more than three years, when a motion was made to strike the answer from the files, and the trial court sustained the motion, not because an answer could be filed out of time, but because the right to object had been waived by allowing the answer to be filed, and remain on file, without objection, for so long a time.

There is no conflict between the above cases, and the judgment of the court below is affirmed.

Affirmed.