Howell v. Moss Point Furniture Co.

Cook, J., delivered the opinion of the court. The appellant, James 0. Howell, recovered a judgment against W. C. Hill in the circuit court of Jackson county, and thereafter had a writ of garnishment issued under this judgment against one J. H.'Hill and the Moss Point Furniture Company, garnishees, returnable to the August, 1923, term, of the circuit court. On August 6, 1923, answers were filed by the garnishees, the answer of the garnishee J. H. Hill denying any indebtedness whatever, while that of the furniture company admitted an indebtedness at the time of the service of the writ of fifty dollars for salary due the defendant W. C. Hill for the month of July, 1923. The answers of the two garnishees were contested by the appellant, and issue was joined on these contests. At the conclusion of the testimony offered by the appellant, the garnishees made a motion for a peremptory instruction, and the court announced that this motion would be sustained. Thereupon the garnishee, Moss Point Furniture Company, asked leave to be permitted to amend its answer so as to show that it was advised and believed that the defendant claimed the fifty dollars salary admitted to be due as exempt from garnishment. Over the objection of the appellant, the court permitted this amendment to be made, and thereupon [406] sustained the motion to exclude the testimony and grant a peremptory instruction for the garnishees, and from the judgment entered in pursuance of this peremptory instruction, this appeal was prosecuted. From the testimony offered by the appellant it appears that prior to 1921 the defendant W. C. Hill was a stockholder of the Moss Point Furniture Company, and was the manager of this company. This company became heavily involved in debt, and in February, 1921, a short time before the rendition of the original judgment in favor of the appellant and against W. C. Hill, the garnishee, J. H. Hill, a brother of W. C. Hill, took over the business by purchasing all the stock of the company. The two Hills testified that it was agreed between them, at the time of the purchase of this stock by J. H. Hill, that W. C. Hill would continue as manager of the concern at a salary of six hundred dollars per year until certain debts of the company had been paid off and the business placed on a sound financial basis, and that when this had been accomplished the salary would be increased; that on account of the small salary paid him it sometimes became necessary for him to overdraw his account to meet his monthly bills; and that J. H. Hill agreed that he might overdraw his account to this extent. They further testified that a few weeks before the issuance of the writ of garnishment J. H. Hill agreed with W. C. Hill that he might overdraw his account to the extent of two hundred eight dollars for the purpose of paying off the balance due on a mortgage on the home of W. 0. Hill, and that two days after the service of the writ of garnishment W. C. Hill, did overdraw his account with the Moss Point Furniture Company for that purpose. The assignments argued by appellant may be summarized as'follows: First, that the court erred in permitting the amendment to the answer of the garnishee, Moss Point Furniture Company, after the testimony for the appellant had [407] been closed and the court bad indicated a purpose to sustain a motion to exclude this testimony. Second, that the court erred in granting a peremptory instruction for the garnishees as to the fifty dollars salary admitted to be due the judgment debtor, W. C. Hill; the contention of the appellant being first that the court should have directed a verdict for appellant for this sum, but, if wrong; in that contention, that the court should have directed that the proceedings against the garnishees be suspended until a summons had issued requiring the suggested exemptionist to assert his right to the exemption if he desired to do so. Third, that the arrangement between W. C. Hill and the garnishee, J. PI. Hill, under which W. C. Hill was authorized to overdraw his account with the Moss Point Furniture Company for the particular purpose of paying off a mortgage on his home constituted a debt, or propertv or effects belonging to the judgment debtor, W. C. Hill. Under our statutes and practice, amendments are very liberally allowed, and we do not think there was any error in permitting the garnishee to amend its answer so as to suggest the exemption; but it was error to grant the ueremptory instruction on the answer which admitted an indebtedness of fifty dollars and for which no claim of exemption had been interposed by the judgment debtor. However, the contention of the appellant that the judgment debtor must be held to have waived his claim of exemption by reason of the fact that he had been present in court as a witness for appellant and had filed no claim of exemption cannot be maintained. It is true that it has been held by this court that the exemption of wages is a benefit which the debtor may voluntarily waive, and that it is his duty to contest the claim of the plaintiff to the property or debt and assert his right of exemption, if he desires to claim it (Sturges v. Jackson, 88 Miss. 508, 40 So. 547, 6 L. R. A. [N. S.] 491, 117 Am. St. Rep. 754), [408] but the failure of a judgment debtor t'o assert his right of exemption cannot be held to be a waiver of the right unless the judgment debtor is in court as a partjr to the garnishment proceedings or has been made a party by a compliance with the statutory requirements. In the case at bar the judgment debtor was in no sense a party to the proceedings, and when the exemption was duly suggested, the proceedings against the garnishee should have been stayed, and a summons issued notifying the suggested exemptionist of the garnishment and requiring him to assert his right to the' exemption. Code of 1906, section 2346; Hemingway’s Code, section 1941; Railroad Co. v. Badley, 94 Miss. 437, 49 So. 114. Did the arrangement between W. C. Hill and the garnishee, J. H. Hill, whereby W. C. Hill was authorized to overdraw his account with the Moss Point Furniture Company for the particular purpose of paying off a mortgage on the home of the judgment debtor, constitute a debt due the judgment debtor, or property or effects in the hands of the furniture company, belonging to the judgment debtor and subject to the garnishment? We think this question must be answered in the negative. It was a mere promise to loan a sum of money at some future date, and so far as this record discloses the promise was not supported by any consideration, and it did not create any right of action in favor of the judgment debtor against either the Moss Point Furniture Company or J. H. Hill for the sum of two hundred eight dollars which J. H. Hill had promised to loan. In 28 Corpus Juris, p. 93, -it is stated as the general rule that — ‘ ‘ It is a general requisite of the right to hold a person as garnishee that, but for the garnishment, defendant would have a right of action against him, for defendant’s own use.” Conceding that under some circumstances an injured party may recover' damages for the breach of a contract to loan money, still the mere promise does not create a debt due the promisee, and in a,' suit for damages for a [409] breach of such a contract the measure of damages for the breach is not necessarily the amount of the promised loan. It is pure speculation as to what, if any, damage would have resulted from a breach of this contract to loan money to the judgement debtor, and the fact that he was able to consummate this loan after the service of the writ of garnishment did not render the amount of the loan subject to the garnishment. For the error herein indicated, the judgment of the court below will be reversed, and the cause remanded. - Reversed and remanded.