Campbell & Campbell v. Pickens Bank

Cook, J., delivered the opinion of the court. On August 7, 1916, Campbell & Campbell, appellants, secured a judgment in a justice court of Yazoo county against J. F. Meeks. This judgment was not paid, and on March 3, 1920, a writ of garnishment was issued on this judgment by the circuit clerk of Yazoo county directed to the Bank of Pickens. This writ was placed in the hands of the sheriff of Holmes county for service, and he made return thereon as follows: [565] “I have this day executed the within writ by delivering to the within named defendant E. J. Spengler a true copy of this writ. This the 13th day of March, A. D. 1920. “D. J. Cbaweokd, Sheriff of Holmes County.” On the return day, no answer to the writ of garnishment having been filed, a judgment was entered against the Bank of Pickens, the judgment containing the following recital: “It appearing to the court that the Bank of Pickens, garnishee, was duly served with process by handing to-the cashier of said Bank of Pickens a true copy of the writ of garnishment more than five days before the return day, and said Bank of Pickens having’ failed to make answer to said suggestion of garnishment, or to answer said garnishment writ in any way, and having failed to appear at all, it is ordered,” etc.. Thereafter an execution was issued on this judgment against the Bank of Pickens, and the sheriff of Holmes county was proceeding to enforce collection thereof against the property and effects of the Pickens Bank, when a bill of complaint was filed in the chancery court of Holmes county by the said Pickens Bank seeking to enjoin further proceedings under or by virtue of this judgment against the Bank of Pickens. The bill of complaint averred that no' writ of garnishment issued under the judgment against J. F. Meeks was ever served upon the complainant, Pickens Bank, or upon any officer of said bank; that the judgment upon which said execution was issued was not against the complainant, but is against the Bank of Pickens, a chartered banking institution formerly located at Pickens, Miss., but which was liquidated in the chancery court 'of Holmes county, in d receivership proceeding which had been finally concluded; that the complainant and its officers were never connected in any way with said Bank of Pick-ens ; that the complainant was not indebted to J. F. Meeks at the time of the alleged service of the writ of garnish [566] ment, and that it had no knowledge of the existence of the judgment against J. P. Meeks until the sheriff attempted-to secure payment thereof by the complainant. The bill prayed for an injunction restraining the defendants Campbell & Campbell, and the sheriff of Holmes county, from further proceedings to enforce collection of the judgment as against the complainant. A temporary injunction was issued, and thereafter defendants, Campbell & Campbell, filed their answer, averring, among other things, that the said writ of garnishment was issued as required by law upon a proper suggestion, and that said writ was duly served by the sheriff of Holmes county upon E. J. Spengler, who was cashier of the Pickens Bank; that the name Bank of Pickens in said suggestion of garnishment and said writ of garnishment was a misnomer, as it was intended for the Pickens Bank; that said writ of garnishment was actually served upon E. J. Spengler, who was cashier of the Pickens Bank; that said E. J. Spengler was never cashier of the Bank of Pickens, and he should have known that it was intended to be served on him as the cashier of the Pickens Bank, and that the Pickens Bank was the party intended to be summoned as garnishee; that in taking a judgment against the Bank of Pickens there was merely" a misnomer, and that said judgment is a valid judgment against the Pickens Bank, as it was intended to be so taken; that at the time of the service of the said writ of garnishment upon the said E. J. Spengler the said Pickens Bank was the only bank in the town of Pickens, Miss.; that the said Bank of Pickens had liquidated and ceased to do business several years before that date; that although the said writ was directed to be served on the Bank of Pickens, the complainant, Pickens Bank, was thereby fully informed of the issuance and purpose of saicl writ by the service of the same on its cashier, and that, since it did not avail itself of the opportunity to appear and makev its defense, if any it had, to said action, it was then precluded from objection to said judgment and the execution thereon. [567] At the final hearing of the cause E. J. Spengler testified that he was then, and had been for about eight years, cashier of the Pickens Bank; that the Bank of Pickens went out of business in the year 1912, and since that time the Pickens Bank was the only bank doing business in the town of Pickens, and that the sheriff did not serve the writ of garnishment in question upon him. T. J. Crawford, the sheriff of Holmes county, identified the writ of garnishment and his return thereon, and testified that he served the writ on E. J. Spengler personally by delivering to him a copy of the writ; that Mr. Spengler was the cashier of the only bank then doing business in the town of Pickens. Upon this testimony the chancellor entered a decree finding that the writ of garnishment was served on E. J. Spengler, but as cashier of the Bank of Pickens instead of the Pickens Bank, and that this did not constitute a service upon the complainant, Pickens Bank, and consequently that the judgment rendered upon this service was void and of no force and effect as against the complainants, and also decreeing that the defendants should be perpetually enjoined from asserting any lien or claim against the complainant by virtue of this judgment. We think the case of Alabama & Vicksburg Ry. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 30 Am. St. Rep. 541, is decisive of the question here presented, the court there saying: “There are cases which hold that one sued and served by a wrong name may disregard the summons. All agree that one summoned by a name not his own, and who appears and does not plead misnomer, waives it, and is bound by the judgment in the wrong name. There is no sound reason for a distinction in the two classes of cases. The true view is, that one summoned by a wrong name, being thus informed that he is sued, although not correctly described by his true name, not availing of his opportunity to appear and object, whereby the true name would be inserted in the proceedings (Code, section 1581), should be precluded from afterwards objecting. Having [568] remained silent when he might and should have spoken, he must ever afterwards be silent as to this matter. This view is sustained by the books. [Citing authorities.] There is no distinction in this respect between natural persons and corporations. When a summons is served on the authorized agent of a corporation, it is served on the corporation. He is the corporation for this purpose, and it is because of this that a judgment by default may be rendered at the return term against the corporation on whose agent summons is personally served, as we hold may be done. ’ ’ On the conflicting evidence upon the point, the chancellor expressly found that the writ of garnishment was served on E. J. Spengler, E. J. Spengler was never connected with the-Bank of Pickens, an institution which had ceased to do business more than eight years prior to that time, but he was then, and for a long time had been, cashier of the Pickens Bank, the only bank doing business in the town of Pickens. He was the authorized agent of a going concern, and when the summons or writ was served on him, although the name of a defunct corporation of similar name was used therein, he was or ought to have been informed thereby that the corporation represented by him was summoned and required to answer the writ, and, the garnishee having failed to avail of the opportunity to appear and object to the misnomer, it is now precluded from.objecting, and is bound by the judgment, though not against it by its true name. The judgment of the court below will therefore be reversed, and judgment will be entered here dissolving the injunction and awarding the statutory damages. Reversed, and judgment here.