
    Jamison v. H. K. Mulford Co.
    [67 South. 148.]
    Justice of the Peace. Appeal. Answer of garnishee.
    
    Where a party was garnisheed in a justice of the peace court, and failed to answer on the day required by section 2347, Code 1906, and judgment was rendered against him in said court, he cannot on appeal to the circuit court for the first time make answer in that court to such garnishment over the objection of the garnishor.
    Appeal from the circuit court of Quitman county.
    Hon. T. B. Watkins, Judge.
    Garnishment by H. K. Mulford Co. against A. H. Jamison. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    P. H. Lowrey, for appellant.
    Denying the right to answer for the first time in the circuit court is to all intents and purposes denying the garnishee the right to appeal from a judgment by default because if he cannot answer in the circuit court, an appeal would be worse than folly as no possible relief could be had. It is unnecessary to argue that the denial of a right to the garnishee to file his' answer for the first time in the circuit court is the denial of a right to appeal from a judgment by default. If he cannot answer for the first time in the circuit court, then the only possible judgment which could be rendered in-the circuit court would be against him for the full amount of the judgment against the original defendant, which is the same or worse than dismissing the appeal. I shall therefore file this brief on the one question as to whether a garnishee who makes no answer in the justice court may appeal to the circuit court. The statute allows appeals from the justice court to the circuit court by either party in civil eases. Code 1906, section 83.
    Appeal is allowed by plaintiff who fails to appear and prose'cute his case in the justice court and permits a judgement of dismissal. McKinnon v. Korn, 78 Miss. 307. Also by a defendant who fails to appear but' permits judgment by default. Callahan v. Newell, 61 Miss 437. Even by a defendant who confesses judgment in the justice court. James v. Woods, 65 Miss. 528.
    The circuit court also on appeals from a justice court tries the case de novo and any defense may be made in the circuit court which might originally have been made in the justice court even though the defense may be affirmative in its nature. Amory etc. v. Cox, 60 So. 641.
    Where the plaintiff’s account upon which the suit is brought is itemized and properly sworn to, the d’efend- and cannot deny the items without a counter affidavit, but it is held that this affidavit may be interposed for the first time on appeal to the circuit court. Code 1906, section 1978; Rose v. Watson, 54 Miss. 673; Railroad Co. v. Andrew si 61 Miss. 474.
    A garnishment is nothing more than a civil suit by a judgment plaintiff against a debtor of a judgment defendant for the amount of the judgment against the defendant because of the fact that the garnishee owes the defendant or has property belonging to the defendant in his possession. The suit is brought against the garnishee by filing with the justice of the peace a written suggestion of the indebtedness by the garnishee and a summons to the garnishee. Code 1906, section '2337.
    A suit in the justice court by plaintiff against the original defendant is likewise brought by filing with the justice of the peace a statement of the cause of action and having a summons issued for the defendant. Code 1906, section 2730.
    
      If the garnishee does not appear to defend on the return day, judgment is taken against him for the amount of the judgment against the defendant. Code 1906, section 2345. Likewise, if the original defendant when summoned does not appear on the return day, judgment is taken against him for the amount of the plaintiff’s demand. Code 1906, section 2741.
    Section 83, allowing appeals, applies to, one the same as to the other, unless there is some reason outside of these statutes to the contrary. I am aware that we have two recent decisions of our supreme court that an answer of the garnishee cannot be filed for the first time in the circuit court, which in effect hold that a garnishee cannot appeal and has no remedy, where the judgment is taken by default. G. <& S. I. R. R. Go. v. Ramsey, 54 So. 440, 98 Miss. 863; So. Lumber Co. v. Mallet, 57 So. 548, 101 Miss. 135. .
    If these decisions are the law and. this court shall follow them, it necessarily means the affirmance of this case, but I am so thoroughly convinced of the wrongfulness of these two decisions that I dare to present the matter again to this honorable court with the hope that upon a fuller investigation of the subject, the •court will see the error and correct it.
    I do not understand or contend that the mere fact that a law or decision works a hardship is sufficient reason ’for changing the law, or decision, but this fact is worthy of consideration in deciding what the law is and in ascertaining the meaning of statutes. In the absence of the two late decisions above referred to, it seems to me there could be no doubt about the correctness of my contention that a garnishee against whom a judgment is taken by default in the justice court can appeal to the circuit court. Little v. Nelson, 61 Miss. 672; Mitchell v. Mead, 46 So. 58.
    It seems to me it was not the- purpose of the legislar ture in requiring a garnishee to answer at the first term and permitting judgment by default in the absence of any answer, to penalize the failure to answer by compelling the garnishee to pay a debt which he did not owe, any more than it was the purpose to penalize a defendant in the original suit for allowing judgment against him by default in the same way. There is nothing in the one statute indicating such an intention more than in the other.
    In the original suit if the defendant fails to appear and defend, and judgment is taken, he has ten days in which to appéal so as to correct the hardship. There can be no reason why the garnishee should not have the same rights and remedies. It seems to me that it would be more reasonable to penalize the man who permits judgment to be taken by default against him for a debt alleged to be due by himself, than to penalize the man who permits judgment taken against him for the debt of another by the same default. I see no difference' in the two so far as the effect of the statutes are concerned. It is true that section 2345 says that judgment against the garnishee shall be “final,” but section 2341 says that an execution may be issued on the judgment against the defendant.' The word “final” here means nothing more than that it is not a judgment, or an interlocutory • order. Under all of the rules it must be a final judgment of that court in order to be appealed from.
    In Little v. Nelson, supra, at page 675, the court says: “It was however, not intended by the statute to place garnishees upon any less favorable footing in the courts than other defendants, nor to fix them with liability because of a slip in answering.” This language was used with ■ reference to the sufficiency of an answer but the principle announced is equally applicable in the case at bar.
    In Mitchell v. Mead, supra, the court holds that it was improper to strike out the answer filed for the first time in the circuit court and render judgment by .default. That garnishment is an independent proceeding and is appealable, as other cases seems to be the general rule. 8 Am. & Eng. Ency. of Law (1st Ed.), page 1257 and note. In as much as the court in the case of the Railroad Go. v. Ramsey, supra, applies the same rule to answers in garnishment as to set-off, it is necessary to examine and compare the law of garnishments and' the law of set-offs. Code 1906, sections 745 to 747 and 2740 are the statutes on set-off.
    The Mississippi decisions on this subject so far as I have found are: Marx v. Trussell, 50 Miss. 498; Callahan v. Newell, 61 Miss. 437. See, also, 19 Ency. PI.. & Pr., page 739. And on subject of costs in appeals', from court of justice of peace see Code of 1906, section-963. Now my contention is that' a garnishee against: whom judgment is taken by default in the court of a. justice of peace should be and is entitled to the rights of appeal to which an original defendant is entitled., '
    This is certainly true unless there is some statute limiting his rights of appeal, or fixing a different rule.
    
      E. G. Black, for appellee.
    Section 2337, Code of 1906, prescribes the procedure to procure a writ of garnishment; section 2342 provides in what particular the garnishee shall answer; section 2345 directs the action of the court when garnishee shall fail to answer; section 2347 says when the garnishee shall file his answer, which is by noon on the return day of the writ, and if garnishee fails to answer on or before the return day, judgmgnt shall be rendered against him which is final unless during the same term of court the garnishee shall show cause for setting-aside said judgment; however the garnishee - may appeal to the circuit court from a judgment against him, in default of answer, but on appeal to the circuit court: he can do nothing more than take advantage of the invalidity of the judgment on which the writ of garhishment was issued or the irregularity of the proceeding in the justice court. Section 83, Code of 1906, gives the right of appeal to either party from a judgment of a justice of peace in all civil cases, but on this appeal the case is tried de novo and no question can be raised on appeal in the circuit court except such questions that were in issue in the justice court, this court has so held in several cases, and it so appears in section 86, Code of 1906. The writ of garnishment is in the nature of an inquiry, the garnishing creditor merely suggests that the garnishee owes the judgment defendant, etc.; there is no affirmance by the garnishing creditor, therefore an issue couldn’t be made by any answer the garnishee might file, unless his answer should be contested or denied, hence it is clear that this question is not in issue in the justice court.
    The motion of garnishee, appellant here, for leave to file his answer in the circuit court was not in the nature of a motion to amend the proceeding in the justice court as is contended by appellant, if appellant had filed an insufficient or irregular answer in the justice court, our courts have held that he can amend this answer in court of the justice of péace or an appeal to the circuit court; but where no answer has been filed of course there is nothing to amend.
    Section 7240, Code of 1906, provides that a defendant in any action in the justice court, if he desires to file a set-off or counter-claim shall file same with the justice of peace on or before the return day of the summons; failing in this he will not be permitted to offer evidence in support of this set-off nor will he be permitted for the first time to file a set-off in the circuit court on appeal. Marx v. Trussel, 50 Miss. 498; Callahan v. New-ell, 61 Miss. 347.
    Appellant has said that the courts seem to put the answer of garnishees and the filing of set-off in the circuit court for the first time in cases appealed from the justice court upon the same footing, and would not permit it foi; the reason that the plaintiff might be taxed with cost which he would not have been taxed had the answer or the set-off, as the case may be, been filed in the justice court, but I beg to submit that that is not the reason given by the court. In Marx v. Trussel, -supra, the court gave as the reason for not permitting a set-off to be filed for the first time, in the circuit court, that the defense made by the set-off was not in issue in the justice court, and since cases appealed from the justice court to the circuit court are to be tried a new summary way, the circuit court is without authority under the statute to allow the set-off to be filed.
    I can see no reason for the court disturbing the opinion in the cases of G. é S. I. Co. v. Ram'sey, and So. Lumber Co. v. Mallet, for they are well reasoned opinions and correctly announce the law, if the law was otherwise, the writ of garnishment would lose the greater part of its value as an aid to a creditor in collecting his debts. If the law was written as appellant would have it, a garnishee who did not owe the judgment defendant any money or have any of his effects, but had a friend who did owe the judgment defendant money, could wilfully refuse to answer in the justice court and let judgment by default be taken and appeal to the circuit court where he could file a full answer, and during this time his friend could1, by collusion or otherwise, pay over this money to the judgment defendant and thereby get it out of reach of the garnishing creditor, and the garnishee would be relieved from answering that his friend had effect's, etc., of the judgment defendant, and, too, a plaintiff, recovering judgment in the justice court, on which the money could not be made without resorting to a writ of garnishment, would never know when he had' caught sufficient money to pay off his judgment, until the case had been appealed to the circuit court and there tried and this would be unreasonable and dangerous. But on the other hand the garnishee can file his answer any time after the writ is served on him, up to noon on the return day, and on cause shown may have the case continued until the next term of court, thus giving him ample time to file his answer. Columbus Insurance & Banking Co. v. Hirsh, et al., 61 Miss. 74. And since the garnishee must be served with.the writ five days before the return day, there can be no case in which the garnishee would not have five and one-half days within which to file his answer or show cause for a continuance of the case, and I cannot imagine any circumstances under which a garnishee could not file some kind of an answer or make some showing for a continuance within this time, and if the garnishee fails in this, the presumption is that he admits a debt due equal to the demand of the plaintiff and in this assumption a final judgment will be entered' against him. Little v. Nelson, 61 Miss. 672.
    I respectfully submit that this case should be affirmed and the law permitted to stand as it now is.
   Reed, J.,

delivered the opinion of the court.

Appellant failed to answer a writ of garnishment issued by a justice of the peace on a judgment in his court in favor of appellee and: duly served on appellant. Several days after the judgment was entered against him in accordance with the statute (section 2345, Code of 1906), appellant appealed the case to the circuit court. He presented an answer to the garnishment in the circuit court with mo.tion for leave to file. Appellee objected to the filing of an answer for the first time in the circuit court. The trial judge sustained the objection, and refused leave to file the answer. This is assigned as error by the appellant.

The ruling in this case refusing to permit the answer to be filed for the first time in the circuit court, where the case was on appeal from the justice of the peace court, is fully sustained by the decisions in the cases of G. & S. I. R. R. Co. v. Ramsey, 98 Miss. 863, 54 So. 440; Lumber & Mfg. Co. v. Mallett, 161 Miss. 135, 57 So. 548.

We are frankly told by counsel for appellant that we will have to affirm this case if we follow the two cases just cited.We cannot agree with counsel in his contention that the cases should not he followed. The decisions in the cases simply redeclare the statute (section 2347, Code of 1906), which is clearly stated and positive in its terms, and we therefore follow them.

Affirmed.  