Field v. McKinney

Chalmers, J., delivered the opinion of the court. Field, Morris & Fenner garnished McKinney as the debtor of their debtors, Brown & Bros., and upon his answer acknowledging an indebtedness in the sum of $735, had judgment for that amount. Subsequently, Alexander Kuhn, to whom the debt due by McKinney had been assigned before the garnishment by Field, Morris & Fenner, brought suit against McKinney on the same cause of action, and likewise recovered judgment against him. Thereupon he filed his bill praying that the holders of the two judgments might be compelled to interpleaá, so that he might be saved from having to pay the same debt twice. His bill for an interpleader was dismissed in this court, upon the ground that it should have been filed before the last judgment against him was obtained, and that having permitted that judgment to go with full knowledge of all the facts, he could not compel his successful antagonist in that action to re-litigate the same question with the other claimant of the sum due ; but we retained the suit as a bill for an injunction against the judgment-creditors in the garnishment proceeding (Field, Morris & Fenner), upon the allegation contained in the bill that at the time when the judgment in that suit was rendered McKinney had no notice that the debt originally due by him to Brown & Bros, had been transferred to Kuhn, and did not discover that fact until after the term of the court at which the judgment in garnishment was rendered had closed. McKinney v. Kuhn, 59 Miss. 186. Upon the return of the case from this court to the court below this allegation was denied by Field, Morris & Fenner, and the proof taken upon the issue thus made clearly establishes, as we think, that it was untrue. It was shown that Kuhn noti771 fled McKinney by letter before the garnishment suit was instituted that the debt had been transferred to him, but this letter McKinney says he did not receive. Kuhn’s attorneys notified him twice before he filed his answer as garnishee, and these letters he received and read, but misunderstood their contents. The same attorneys again wrote him after the judgment in garnishment had been entered, notifying him of the fact, and advising that he take steps during the term to have it vacated, as they would certainly collect the debt for their client, and he would thus be compelled to pay twice. This communication he also received, but again misunderstood, and took no steps whatever to avail himself of the advice given. A copy of one of the letters received by him is in the record, and we neither perceive anything ambiguous in its contents, nor anything in the attendant or succeeding circumstances to justify his unexcusable want of attention to the business. It is a great hardship that he should be compelled to pay the same debt twice, but this is as clearly his fault as it is his misfortune. To warrant the injunction or vacation of a judgment at law by a court of equity, “ it will not suffice to show that injustice has been done by the judgment against which relief is sought, but it must also appear .that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must show a clear case of diligence to entitle'himself to an injunction.” -High on Inj., sect. 85. The judgment is sought to be enjoined upon the further ground that it is void by reason of the fact that in suing out the attachment against Brown & Bros, (in which suit McKinney was garnished), the only surety upon the attachment-bond was the Bank of Vicksburg, which had, by its charter, no authority to become a surety. Hence, it is said the whole proceeding, as well against the garnishee as against the defendants in attachment, was a nullity. This position is not maintainable for two reasons : — 1. Conceding that the bank had no authority to become surety on the bond, the instrument was amendable under the [772] statute (sect. 2464, Code 1880), and the defendants who had been-personally served with process made no objection to it. Certainly, the judgment rendered was not void. 2. Where a defendant in attachment is personally served, the garnishee has no concern with the regularity or merits of the judgment against him, and can complain only of defects which affect himself. When the defendant in attachment is personally before the court in the same suit, the garnishee has no interest in the jurisdiction of the court, nor in the regularity of the proceedings, in so far as they relate to the judgment against the defendant, and cannot, of course, thereafter attack the validity of such judgment. His only concern in such case is with the proceedings against himself. He cannot, therefore, under these circumstances, object that the bond given for the pi-otecfcion of the defendant was invalid. Drake on Attach. (5th ed.), sect. 692, et seq. Decree reversed and bill dismissed.