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  • B.A. Duncan and Bozeman Bozeman, all of Meridian, for appellant. Goodyear Tire Rubber Company, appellant, recovered a judgment in the county court of Lauderdale County, Mississippi, against M.G. Boone, defendant, on September 16, 1939, in the sum of $75.55, and costs of the court, none of which had been paid, and on August 17, 1945, it caused to be issued a writ of garnishment on Oliver Ross, the appellee, herein returnable to the county court at the September term 1945, at which time the garnishee appeared and filed his answer thereto in which he denied being indebted to the defendant, M.G. Boone, but stated that M.G. Boone had filed suit against him in the circuit court of Lauderdale County, Mississippi, in the sum of $1010.00, for trespass in the cutting of a number of trees from his land, which suit was returnable to the October 1945 term of said court, thereupon the appellant obtained an extension of time until the November 1945 term of the county court within which to file a contest to the answer of the garnishee, and on October 30 it filed its contest of the answer of the garnishee. Appellant was advised prior to the filing of its contest that Boone and Ross had settled and compromised their suit in the circuit court; and in the replication of the appellee to the appellant's contest of the answer filed, the appellee admits that he paid the defendant, M.G. Boone, the sum of $75.00 in settlement of the suit in the circuit court. On the trial of the contest in the county court a judgment was rendered discharging the garnishee and taxing costs against this appellant, from which judgment plaintiff-appellant appealed to the circuit court, which affirmed the judgment of the county court, and appellant has duly appealed to the Supreme Court. The court below held that in its opinion the $75.00 paid by Ross to Boone represented the amount paid as damages to Boone's exempt homestead lands, and therefore same would be exempt the same as the homestead lands. The timber alleged to have been cut and removed from the homestead lands of M.G. Boone by the garnishee, Oliver Ross, was not exempt as a part of the homestead, but became personal property on being cut and removed from said lands, even if the timber was cut and removed by the appellee without Boone's consent. Bridgeforth v. Middleton, 186 Miss. 185, 186 So. 837; L.N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So.2d 19; Constitution of 1890, Sec. 211. Money recovered as damages to exempt property is not of itself exempt. Johnson v. Edde, 58 Miss. 664. Champ C. Gipson and J.V. Gipson, both of Meridian, for appellees. The only liability of the garnishee to the judgment debtor at the time of the issuance of the garnishment was under an unliquidated claim for damages for an alleged tort. Unliquidated claims for damages are not subject to garnishment. Craig v. Gaddis, 171 Miss. 379, 157 So. 684; 38 C.J.S., Garnishment, Secs. 89, 91. See also Edmonson v. Meacham, 50 Miss. 34; Adams v. Dees, 62 Miss. 354; Blair et al. v. Kansas City M. B.R. Co., 76 Miss. 478, 24 So. 879; Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291; Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Gavin v. United States, 63 F. Supp. 425; Code of 1942, Sec. 318.
Judges
  • Griffith, P.J., delivered the opinion of the court.
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Attorney(S)
  • B.A. Duncan and Bozeman Bozeman, all of Meridian, for appellant. Goodyear Tire Rubber Company, appellant, recovered a judgment in the county court of Lauderdale County, Mississippi, against M.G. Boone, defendant, on September 16, 1939, in the sum of $75.55, and costs of the court, none of which had been paid, and on August 17, 1945, it caused to be issued a writ of garnishment on Oliver Ross, the appellee, herein returnable to the county court at the September term 1945, at which time the garnishee appeared and filed his answer thereto in which he denied being indebted to the defendant, M.G. Boone, but stated that M.G. Boone had filed suit against him in the circuit court of Lauderdale County, Mississippi, in the sum of $1010.00, for trespass in the cutting of a number of trees from his land, which suit was returnable to the October 1945 term of said court, thereupon the appellant obtained an extension of time until the November 1945 term of the county court within which to file a contest to the answer of the garnishee, and on October 30 it filed its contest of the answer of the garnishee. Appellant was advised prior to the filing of its contest that Boone and Ross had settled and compromised their suit in the circuit court; and in the replication of the appellee to the appellant's contest of the answer filed, the appellee admits that he paid the defendant, M.G. Boone, the sum of $75.00 in settlement of the suit in the circuit court. On the trial of the contest in the county court a judgment was rendered discharging the garnishee and taxing costs against this appellant, from which judgment plaintiff-appellant appealed to the circuit court, which affirmed the judgment of the county court, and appellant has duly appealed to the Supreme Court. The court below held that in its opinion the $75.00 paid by Ross to Boone represented the amount paid as damages to Boone's exempt homestead lands, and therefore same would be exempt the same as the homestead lands. The timber alleged to have been cut and removed from the homestead lands of M.G. Boone by the garnishee, Oliver Ross, was not exempt as a part of the homestead, but became personal property on being cut and removed from said lands, even if the timber was cut and removed by the appellee without Boone's consent. Bridgeforth v. Middleton, 186 Miss. 185, 186 So. 837; L.N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So.2d 19; Constitution of 1890, Sec. 211. Money recovered as damages to exempt property is not of itself exempt. Johnson v. Edde, 58 Miss. 664. Champ C. Gipson and J.V. Gipson, both of Meridian, for appellees. The only liability of the garnishee to the judgment debtor at the time of the issuance of the garnishment was under an unliquidated claim for damages for an alleged tort. Unliquidated claims for damages are not subject to garnishment. Craig v. Gaddis, 171 Miss. 379, 157 So. 684; 38 C.J.S., Garnishment, Secs. 89, 91. See also Edmonson v. Meacham, 50 Miss. 34; Adams v. Dees, 62 Miss. 354; Blair et al. v. Kansas City M. B.R. Co., 76 Miss. 478, 24 So. 879; Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291; Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Gavin v. United States, 63 F. Supp. 425; Code of 1942, Sec. 318.
Judges
  • Griffith, P.J., delivered the opinion of the court.
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Smart Summary

GOODYEAR TIRE RUBBER Co. v. ROSS et al.

GARNISHMENT.

Where only liability of garnishee to judgment debtor at time of issuance of garnishment and of garnishee's answer thereto was under an unliquidated demand for damages for an alleged tort, garnishment would not lie.

Griffith, P.J., delivered the opinion of the court.

The only liability of the garnishee to the judgment debtor at the time of the issuance of the garnishment, and of the garnishee's answer thereto, was under an unliquidated demand for damages for an alleged tort. Unliquidated claims for damages are not subject to garnishment. 38 C.J.S. garnishment, Secs. 89, 91; Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 95 A.L.R. 1494, and cases therein cited.

Affirmed.

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GOODYEAR TIRE RUBBER CO. v. ROSS
(Apr 21, 1947)