Maranatha Faith Center, Inc. v. Colonial Trust Co.

904 So. 2d 1004, 2004 Miss. LEXIS 1405, 2004 WL 2749123
CourtMississippi Supreme Court
DecidedDecember 2, 2004
Docket2003-CA-02349-SCT
StatusPublished
Cited by10 cases

This text of 904 So. 2d 1004 (Maranatha Faith Center, Inc. v. Colonial Trust Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maranatha Faith Center, Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405, 2004 WL 2749123 (Mich. 2004).

Opinion

904 So.2d 1004 (2004)

MARANATHA FAITH CENTER, INC.
v.
COLONIAL TRUST COMPANY.

No. 2003-CA-02349-SCT.

Supreme Court of Mississippi.

December 2, 2004.

*1005 Bennie L. Turner, West Point, Angela Turner Lairy, L. Landis Sexton, Montgomery, AL, Tyler Charles Vail, Birmingham, AL, attorneys for appellant.

Richard Shane McLaughlin, William M. Beasley, Tupelo, attorneys for appellee.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. In February 2003, the Chancery Court of Lowndes County entered a final judgment against Maranatha Faith Center, Inc. (Maranatha), in favor of Colonial Trust Company (Colonial) in the amount of $876,753.08.[1] By September, 2003, the judgment remained unsatisfied and Colonial thus levied execution on certain personal property found on Maranatha's premises and on Maranatha's chose in action styled Maranatha Faith Center, Inc. v. Kerr-McGee Corp., being assigned cause number 2002-0004-CV1 on the docket of the Circuit Court of Lowndes County, Mississippi.[2] Maranatha moved that the writ be quashed and that the execution be stayed. Following a denial of these motions, Maranatha appeals raising the following issues. We hold that a chose in action is subject to a writ of execution.[3]

I. Whether an action for unliquidated damages can be executed upon by a judgment creditor and subsequently sold at public auction, possibly to a third party?

¶ 2. This is a case of first impression and requires the Court to consider Mississippi Code §§ 11-7-7, 13-3-127 and 13-3-135 and several opinions, including Hunt v. *1006 Preferred Risk Mut. Ins. Co., 568 So.2d 253, 255 (Miss.1990).

¶ 3. Maranatha argues that a levy of execution upon a chose of action is not authorized by Mississippi law. Further, Maranatha argued to the chancellor, that a writ of execution based on a judgment lien may only be applied to the proceeds of a lawsuit and not the lawsuit itself. Maranatha also suggested that a writ of garnishment was the proper method to collect on a judgment lien from an ongoing lawsuit and that, per William Iselin & Co. v. Delta Auction & Real Estate Co., 433 So.2d 911 (Miss.1983), a writ of execution cannot be applied to intangible property such as ongoing litigation.[4] The chancellor disagreed and held that under §§ 11-7-7, 13-3-127 and 13-3-135 a chose in action is subject to a writ of execution.

¶ 4. On appeal, Maranatha reasserts its earlier argument and claims that the chancellor's ruling is contrary to state law and unconstitutional according to Miss. Const., 1890, Art. 3, § 24. The Court disagrees.

¶ 5. We have previously defined the term "chose in action." In Garrett v. Gay, 394 So.2d 321, 322 (Miss.1981), we relied on 73 C.J.S. Property § 9 (1951) to state:

A "chose in action" means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, or, as it is defined by statute, a right to recover money or personal property by a judicial proceeding.

¶ 6. Generally, any chose in action is assignable after the suit is filed. Miss. Code Ann. § 11-7-7 (Rev.2004). See also Sneed v. Ford Motor Co., 735 So.2d 306, 311 (Miss.1999); Kaplan v. Harco Nat'l Ins. Co., 716 So.2d 673 (Miss.Ct.App.1998). Miss.Code Ann. § 11-7-7 provides in part:

[that a]ny chose in action or any interest therein, after suit has been filed thereon, may be sold or assigned the same as other property, whether such claim or any interest therein was heretofore assignable under the laws of this state or not.

(emphasis added).[5] Until the enactment of statutory law, such was prohibited under the common law. Kaplan, 716 So.2d at 676 (collecting authorities).

¶ 7. Maranatha seeks a narrow reading of the statutes germane to our review of assigning a chose in action. While it concedes that state law allows the assignment or sale of a chose in action, it maintains that because there is no explicit statute authorizing the execution of a judgment on a chose in action, such is not permitted. However, a reasonable interpretation of § 11-7-7 is that a chose in action may be transferred to the same extent as other property and therefore treated the same as other property. See Cartwright v. Deposit Guar. Nat'l Bank, 675 So.2d 847, 847 (Miss.1996) (citing Garrett v. Gay, 394 So.2d 321, 322 (Miss.1981) (the term personal property includes a chose in action.)).

*1007 ¶ 8. We do not read statutes in isolation, but instead, we must construe our statutes together. Wilbourn v. Hobson, 608 So.2d 1187, 1191 (Miss.1992) (statutes which relate to the same subject matter must be read together to determine the mind of the Legislature).

¶ 9. The clear language of § 11-7-7, leaves little doubt that a writ of execution may be issued against a chose in action based on its status as personalty. Coupled with its authority to enact a statute that abrogates the common law rule, is the Legislature's ability to limit § 11-7-7. There is no indication that the Legislature sought or intended to limit § 11-7-7. Accordingly, save any statutory exceptions, there is no limitation on the execution of a chose in action.

¶ 10. Further supporting this premise is Miss Code Ann. § 13-3-135 (Rev.2002), which provides:

The purchaser of any chose in action, stock, share, interest, judgment, or decree of the defendant, sold under execution or attachment, shall become the owner thereof, in the same manner as if it had been regularly assigned to him by the defendant.

(emphasis added). This statute specifically addresses the rights of purchaser of a chose in action sold under execution. It expressly provides that a purchaser of a chose in action is on the same footing as one who received the chose via a more typical assignment. Implicit in § 13-3-135 is that a chose in action may be sold under execution.

¶ 11. Maranatha does not address why the Legislature would consider the rights of a party to a transaction that is prohibited under state law. Instead, as opposed to addressing the provisions of § 13-3-135, Maranatha focuses on the fact that § 13-3-127 only speaks to attachment and not execution.[6]

¶ 12. Miss.Code Ann. § 13-3-127 (Rev. 2002) provides:

In case an attachment be levied on rights, credits, and choses in action, the officer shall take into his possession the books of accounts and other evidences of debt belonging to the defendant, and if the plaintiff so direct, he shall summon all persons appearing to be indebted to the defendant, or to have effects of his in their hands, as garnishees, in the manner prescribed by law.

Maranatha makes two arguments regarding § 13-3-127. First, Maranatha stresses that § 13-3-127 speaks only to circumstances involving attachment. The Court agrees with Maranatha in that § 13-3-127 only addresses attachment.

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Cite This Page — Counsel Stack

Bluebook (online)
904 So. 2d 1004, 2004 Miss. LEXIS 1405, 2004 WL 2749123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maranatha-faith-center-inc-v-colonial-trust-co-miss-2004.