Alabama Great Southern Ry. Co. v. Crawley

79 So. 94, 118 Miss. 272

• Court: Mississippi Supreme Court
• Decided: March 15, 1918
• Status: Published

Opinion

Smith C. J.,

delivered the opinion of the court.

This is an appeal by a garnishee from a judgment rendered against him in a garnishment proceeding. The cause was submitted to the court below on an agreed statement of facts which recites:

“That, in the months of September to December, inclusive, 1914, the defendant, J. T. Fitzgerald, became indebted to the plaintiff, A. W. Crawley, in the amount of ninety dollars and twenty-five cents for groceries and merchandise furnished the family of said J. T. Fitzgerald at Meridian, Miss. That, on the 20th day of Febuary, 1915, the defendant, J. T. Fitzgerald, filed a voluntary petition in bankruptcy in the district court of the United States for the Southern Division of the Northern District of Alabama, sitting at Birmingham, in said state, and was, on that day, adjudged a bankrupt. That he scheduled his said indebtedness to the plaintiff, A. W. Crawley, and that the plaintiff, A. W. Crawley, was notified of the said bankruptcy proceeding. That the plaintiff, A. W. Crawley, did not prove his debt in said bankruptcy, but on the 12th day of March, 1915, instituted this suit against the defendant, J. T. Fitzgerald on said debt before B. Clay, justice of the peace, at Meridian, Miss. That on the 17th day of March, 1915, a summons was served on the defendant by leaving a copy thereof with his wife, Mrs. J. T. Fitzgerald, at Meridian, Miss., and thereafter, on the 26th day of April, 1915, judgment by default was rendered in said case by said justice of the peace in favor of the plaintiff against defendant for ninety dollars and twenty-five cents and costs, and thereafter, in said bankruptcy proceeding, the said J. T. Fitzgerald filed his petition for a discharge, and was duly discharged on the 15th day of July, 1915, and thereafter on the léth day of August, 1915, the plaintiff procured a writ of garnishment on said judgment to be issued by said justice of the peace and to be served upon the Alabama Great Southern Bailroad Company, garnishee, returnable on the 23d day of August, 1915. The garnishee failed to answer the said writ on the return day and in the form required by the statute, and on the 7th day of September, 1915, both the defendant and the garnishee filed their motions before said justice of the peace to quash the writ of garnishment, as per said motions on file among the papers, and at the same time the plaintiff orally moved the court for a judgment against the garnishee for' failure to answer. The motion of the plaintiff was overruled, and the motions of the defendant and garnishee were sustained by the said ■ justice of the peace, and from said judgment of the said justice of the peace this appeal is prosecuted.”

The record does not disclose any express disposition in the court below of Fitzgerald’s motion to quash the writ of garnishment, but awards appellee a recovery against the garnishee for the amount of the judgment against Fitzgerald. The garnishee alone appeals.

Among the questions raised by counsel for appellee are the power vel non of the justice of the peace to permit the motions to quash the writ of garnishment to be filed after the return day of the writ, and the validity of Fitzgerald’s discharge in bankruptcy; but the question which lies at the threshold of this appeal is the right vel non of the garnishee to complain of the judgment rendered in the court below, and from which the appeal to this court is prosecuted.

Appellee’s judgment against Fitzgerald is not void; Fitzgerald’s discharge in bankruptcy being simply a bar to the enforcement thereof, if pleaded, and in a proceeding to enforce a judgment rendered against a bankrupt during the pendency of the bankruptcy proceedings the right to plead a discharge rendered in such a proceeding “is personal to the bankrupt, and where he does not rely thereon it cannot be set up by another.” 7 C. J. 415 et seq.; Collier on Bankruptcy (10th Ed.), 365. The cases cited by counsel for appellant to the contrary deal with judgments rendered within four months prior to the filing of the petition in bankruptcy, and have no application here.

Our statutes do not provide any special procedure by which a discharged bankrupt can be relieved of a judgment against him, prior, to his discharge; but there are at least two ways by which such relief can be obtained: First, by motion in the court rendering the judgment for a perpetual stay of - execution. Boynton v. Ball, 121 U. S. 457, 7 Sup. Ct. 981, 30 L. Ed. 985; Barnes Mfg. Co. v. Norden, 7 Am. Bankr. Rep. 553 ; Hellman v. Goldstone, 161 Fed. 913, 88 C. C. A. 604, 20 Am. Bankr. Rep. 539. Second, by motion to quash any process issued thereon.

Fitzgerald, therefore, had the right to seasonably move the justice of the peace to quash the writ of garnishment; but the garnishee did not. Consequently the garnishee, the only appellant here, has no right to complain of the judgment by which the court below declined to quash the writ and directed it to pay the money due by it to Fitzgerald to appellee. If appellant owes Fitzgerald the money, and by its failure to deny owing him we must presume that it does, whether it pays the money to Fitzgerald or to appellee can be no concern to it, provided only it is protected from having to pay it twice.

But it is said by counsel for appellant that Fitzgerald’s motion to quash the writ was decided in his favor in the court below; therefore he has nothing from which to appeal. We do not so understand the record, for the only judgment rendered directed appellant to pay the money to appellee, thereby necessarily denying Fiitzgerald’s motion that the writ of garnishment be quashed.

Affirmed.