Hattiesburg Trust & Banking Co. v. Hood

Mates, C. J"., delivered the opinion 'of the court. The certiorari should not have been dismissed. The record sent up by the justice shows that there should have been no judgment entered against the garnishee, as there was an answer filed at the time denying indebtedness. There was no contest of this answer, and it was conclusive. This being the case, instead of dismissing the writ, the court should have reversed the judgment of the justice and entered a judgment in the circuit court in accordance with the requirements of Code 1906, § 90, discharging the garnishee from any liability. After the case reached the circuit court it was too late to contest the garnishee’s answer, since Code 1906, § 2353, requires that the contest be made, if at all, “at the term when the answer is filed.” The only judgment the circuit court- could render, under the facts of this case, was a judgment reversing the justice and discharging the garnishee. No contest could be made in the circuit [344] court for the first time. Williams v. Jones, 42 Miss. 270; Gordon v. Moore, 62 Miss. 496; Ice Co. v. Cook-Well Co., 71 Miss. 886, 16 South. 259. But it is claimed on the part of appellees that the answer of the garnishee shows it had some property in its possession which belonged to the debtor, and therefore it was not necessary to enter into any contest, even though in another part of the answer it had denied this. If the facts sustained appellee’s contention, there would be no difficulty; but it is apparent that appellant never intended to make any such admission. The answer may not be as clear as it ought to 'be in some of its aspects; but it is certain that it denies indebtedness, and when this is the case it should be clear that there is an admitted liability before an effect should ' be given to an alleged admission which is at variance with express denial. The remedy by contest is easy and available, and should be invoked by the attaching creditor, instead of relying on a supposed admission at variance with an express denial. Reversed and remanded.