Mechanics & Traders Ins. v. Butler

Smith, C. J., delivered the opinion of the court. This record presents the separate appeals of the Mechamos’ & Traders’ Insurance Company, Aetna Insurance Company, National Fire Insurance Company, Stuvvesant Insurance Company, German Fire Insurance Company, and Globe & Rutger’s Fire Insurance Company, from separate judgments rendered against each of them as garnishees in a garnishment proceeding. In January, 1915, appellee instituted a suit by attachment in the circuit court of the Second judicial district of Coahoma county against Mrs. R. Friedman to recover an indebtedness alleged to be due him, and alleging that she was about to remove herself or property out of the state, and suggested that appellants were indebted to her, whereupon writs of garnishment were issued and served upon them as provided by law. The answers of the Stuvvesant Insurance Company, Mechanics’ & Traders’ Insurance Company, National Fire Insurance Company, and Aetna Insurance Company, after setting forth that the garnishee was not indebted to the defendant, did not have any of her effects in its possession or under its control, that it did not know or believe that any other person was- indebted to her, and that it did not know or believe that any other person had effects belonging to her or in his possession or under his control, proceeded as follows: “The said garnishee now states to the court that it carried a policy of insurance on the defendant’s, Mrs. R. Friedman’s’, property, and that the same has not been-adjusted, and it has not at this time been determined whether there is anv liability under said garnishee’s policy or not, and said garnishee asks that if it shall be subsequently determined that there is any liability un [483] der said policy, that this garnishee be permitted to make a supplemental answer to this writ, after learning definitely what sum, if anything, is due said defendant.” .The answers of the German Fire Insurance Company and the Globe & Rutger’s Fire Insurance Company each admitted an indebtedness due by each of these companies to Mrs. Friedman of eight hundred seventy five dollars and fourteen cents, negatived the other interrogatories contained in the writs of garnishment, and then proceeded as follows: “This indebtedness, however, is subject to the following attachments: “Attachment No. 1, served through F. M. Guthrie, J. P., Memphis, Tenn., on the 5th day of December, 1914, in favor of the National Bedding Company, and returnable on the 15th day of December, 1914. - “Attachment No. 2, served through F.' M. Guthrie, J. P., Memphis, Tenn., on the 5th day of December, 1914, in favor of the Mississippi Valley Furniture Company, and returnable on the 15th day of December, 1914. “Attachment No. 3, served through F. M. Guthrie, J. P., Memphis, Tenn., on the 5th day of December, 1914, in favor of the Ellet Rendall Shoe Company, returnable on the 15th day of December, 1914. “Attachment No. 4, served through Jas. P. Cashin, J. P., Memphis, Tenn., on the 31st day of December, 1914, in favor of the ¥m. R. Moore Dry Goods Company, and returnable on the 9th day of January, 1915. “The claim of G. W. Butler and Marquette Cloak & Suit Company.” These answers were not traversed nor in any way contested at the term of court at which they were filed, hut at the next term traverses thereof were filed in writing by appellee, in which he set forth the amount claimed by him to he due by each company to Mrs. Friedman; .and the issue thus joined was submitted to a jury, which returned a verdict in each case for [484] appellee in the sum claimed by him, to be due from each company, and judgments were entered accordingly. Appellees were not aware of this proceeding until after the adjournment of the court. Under the statute it is the duty of the garnishee to expressly admit or deny any indebtedness to the defendant in attachment or execution, as the case may be, and upon his failure so to do the plaintiff is" entitled to a judgment by default unless the answer contains sufficient matter to entitle the garnishee to amend, in which event the plaintiff must except thereto, and if the exception should be sustained by the court, leave should be given to the garnishee to answer over, and upon his failure so to do judgment should be rendered against him by default for want of a sufficient answer. The answers of the Stuyvesant Insurance Company, Mechanics’ & Trader’s Insurance Company, National Fire Insurance Company, and -¿Etna Insurance Company simply amount to an allegation that they are unable to say whether or not they are indebted to Mrs. Friedman, but that in event they should afterwards ascertain that they are so indebted they will, with the permission of the court, file amended answers setting that fact forth. The proper course for appellee to have pursued with these answers was to have excepted thereto, which exception should have been sustained by the court and judgments for want of a sufficient answer awarded, unless appellants asked leave to amend, in which event they should have been permitted so to do, and if dissatisfied with the amended answers appellee could have then taken issue upon them and the causes should then have preceeded to trial thereQn. It was not necessary for these exceptions to be fifed at the same term at which the answers were filed, for the reason that the answers themselves requested permission to file amendments thereto at a later day, thereby continuing the cases in court until they should be disposed of in a proper manner. [485] The answers of the German Fire Insurance Company and Globe & Rutger’s Fire Insurance Company each admitted an indebtedness due by each of them to Mrs. Friedman, and the allegations therein that this indebtedness is subject to certain attachments is too vague and indefinite to raise ah issue relative thereto, so that appellee was entitled to judgments on the answers for the amounts admitted to be due. Appellee lost the right, however, to contest these answers and obtain judgments for larger sums than those admitted to be due, for the reason that under section 2353, Code 1906, the answer of a garnishee must be contested during the term at which it is filed, or leave then obtained from the court to contest the same at a subsequent term. Ice Co. v. Cook Wells Co., 71 Miss., 886, 16 So. 259; Hattiesburg Trust & Banking Co. v. Hood, 97 Miss. 340. 52 So. 790. The judgments of the court below will be reversed, and the causes remanded to be proceeded with in accordance with this opinion. Reversed and remanded.