Wineman v. Clover Farms Dairy , 168 Miss. 583 ( 1934 )

On October 12, 1931, appellee obtained judgment against Mrs. A.E. Wineman for nine hundred and ninety-nine dollars. Thereafter, on June 15, 1932, a writ of garnishment was issued under said judgment and was served on the First National Bank of Greenville, garnishee. At the return term of the writ, the garnishee answered admitting an indebtedness to Mrs. Wineman in the sum of ninety-three dollars and thirty-six cents, money on deposit, and further answered as follows: "This Garnishee would respectfully show that Mrs. A.E. Wineman has rented from it a safety deposit box which is situated in the vault of this Garnishee. This Garnishee is not advised and does not know what are the contents of said box. Garnishee would show that it does not have control or possession of the contents of said box and is therefore unable to describe said contents." At the same term, the July, 1932, term, the garnishee filed a supplemental answer in which it averred that it had been informed that the contents of the lock box mentioned in its previous answer were claimed by Imelda Wineman, a minor, and the garnishee suggested therewith that Imelda Wineman be summoned to appear and propound her claim. Later and at the same term the claimant appeared and presented her claim in writing under oath, and thereby asserted ownership not only of the money on deposit but also of the contents of the bank box. She prayed that a claimants' issue be forthwith made up and tried.

Issue was not taken on the claim of the said third person at the said July, 1932, term, and the matter rested until the cause came on for trial at the October term, and on the 18th day of October, 1932, when the claimant moved the court to dismiss the garnishment and for judgment for the claimant, because issue had not been joined by the plaintiff at the return term in July, 1932. The court overruled this motion and permitted the plaintiff to formally join issue on that date, to-wit, on October 18, 1932. Thereupon, the cause proceeded to trial and there was a verdict for the plaintiff.

We have examined the evidence and are of the opinion that the verdict is supported thereby, and also that there was no reversible error in the refusal by the court of the instruction requested by the claimant, and of which complaint is made in the argument. We therefore address ourselves at once to the two principal questions presented for decision.

It is the contention of appellant that it was error for the court to allow the plaintiff to join issue on the claim of the third person after the term to which the garnishment was returnable and at which the claim was filed; and as the basis for the contention appellant relies on section 3427, Code 1930, which governs the procedure when there is a claim by a third person to property levied upon by execution, and which section expressly provides that issue shall be made up at the return term; and it is to be observed that by section 153, Code 1930, the same procedure is made to apply to cases of claimants to property levied on by writs of attachment.

Section 1853, Code 1930, which deals with the subject of claims of third persons in garnishment, does not contain any express provision as to when issue shall be made up on the claimant's affidavit. The language of that section is merely that after the claimant has appeared and propounded his claim in writing, under oath, "the plaintiff may take issue thereon, and the same shall be tried and determined as other issues." If that language were that the same shall be tried and determined as other claimants' issues, the contention of appellant might be maintainable, although it still would not be clear, for when we turn to claimants' issues in replevin, section 3103, Code 1930, or to the general statute in reference to claims of third persons, section 564, Code 1930, we find that issue on the claim is not required to be made up only at the return term, and for reasons which there sufficiently appear. In order that we should be authorized to supplement the provisions of section 1853, Code 1930, and by construction add to the language thereof the requirement that issue on claimants' affidavits in garnishment shall be joined at the return term, it would have to clearly appear to us that the legislative intent and purpose was that we should do so, and that the reasons therefor were identical with those applying to execution and attachment. But the reasons are not identical, for in execution and attachment, the officer must, in most cases, take the personal property into his possession, and it is the policy of the law to prevent the accumulation and care of such property in the hands of officers, — that the officer shall be relieved thereof at the earliest practical time, whereas in garnishment the property ordinarily remains in the hands of the garnishee until final judgment.

It follows therefore that we cannot by judicial construction rewrite section 1853, Code 1930, so as to insert therein a positive requirement that the issue on the claimants' affidavit in garnishment shall be made up at the return term only, and in no case later than that term. This is a matter that rests in the sound judicial discretion of the trial court, and is reviewable only when it is shown that there has been an abuse of that discretion, which is not the case here.

The other question is whether the contents of the safety deposit box in the garnishee bank rested by the judgment debtor, and which, according to the testimony of the judgment debtor, contains bonds and some other property of saleable value, is subject to garnishment. The testimony shows that this safety deposit box is of the same character as those in general modern use throughout the country, that is to say, there are two keys, one the master key which is held by the bank, and the other the customer's key, and that the contemporaneous use of both keys is necessary to open the box, except of course the box can be opened by a mechanic with appliances or tools suitable for that purpose. The argument of appellant is that the contents of the box sought to be garnished are not "in the possession or under the control" of the garnishee within the terms of the garnishment statute. Code 1930, section 1843.

If the box were not integrated into the vault, and were a separate box independent of the other boxes, so that the box could be delivered to the officer on final judgment in the same manner as a trunk or chest, there would seem to be no difficulty in the conclusion that such a separate box, although locked, would be subject to garnishment, and that the garnishee should be required to deliver over the same under garnishment process, and judgment. There, certainly, the box would be in the possession of the garnishee, and moreover it would be sufficiently under his control. And the box here is still a box in the possession of the garnishee, although integrated into a vault with other boxes. It has not lost its individual or separate character because of that fact. There is, therefore, no determinative legal difference between such a box, merely because of a group system of convenience, in construction and maintenance, as compared with one entirely separated from the vault. All the modern cases on the point so hold, and that such a box, or rather the contents thereof, are subject to the writ of garnishment.

One of the leading cases so holding is Tillinghast v. Johnson,34 R.I. 136, 82 A. 788, Ann. Cas. 1914A, 960, reported and annotated in 41 L.R.A. (N.S.) 764, and another is West Cache Sugar Co. v. Hendrickson, 56 Utah, 327, 190 P. 946, 949, reported and annotated in 11 A.L.R. 216. These cases, and the annotations mentioned, give all the modern cases on the subject and there is no dissent among them. There are two or three old cases which are to the contrary, but these have been overwhelmed by the later decisions. As said by the Utah court: "It certainly would be a reproach to our jurisprudence and to the administration of the law if it were held that the law may successfully be defied by human agencies, and that courts cannot make their processes effective merely because valuable property may be locked and concealed in a steel safe or receptacle." Or, as said by the Missouri court, State ex rel. Rabiste v. Southern, 300 Mo. 417, 427, 254 S.W. 166, 168, where it appeared that the money was stolen and locked in a safety deposit box: "It would indeed be a deplorable situation and a strange and harsh rule if all a thief has to do, after securing his booty, is to hasten to some bank and lock his ill-gotten gains in a safe deposit box and then be able to defy recovery of such property by the courts."

The argument of appellant is that the remedy is in equity, where the court acting in personam may order the box renter to produce the customer's key. All the delinquent renter would have to do to forestall the effectiveness of such a proceeding would be to absent himself from the state, and beyond the reach of personal process, or if he became determined in his contrariety, he could throw away his customer's key or destroy it, in which case the box, if ever opened, would have to be done by a mechanic and by suitable tools. And when the judgment of a competent court has adjudged that the contents of a safety deposit box are subject to sale to satisfy the debt of a judgment creditor, the judgment debtor, the lessee of that box, who refuses to present his customer's key that the box may be thereby opened, ought not be allowed to stand in any better position than one who has lost or destroyed his key.

And the foregoing observation is the answer to the argument that often these safety deposit boxes contain personal papers and documents of a confidential nature of no present saleable value, and that it is highly obnoxious to the right of personal privacy that an order of court should run against such a receptacle and thereby expose the personal and private papers therein contained. No such a situation is suggested as existing in this case, and no complaint is made as to form of the judgment here rendered. The only point here made is that the box was not subject to garnishment at all. If such a box contains personal and private papers of the nature mentioned, it is within the privilege of the box renter to so make known to the court, and when so done, the court can and will make the proper order to preserve the privacy of the party or of all the parties concerned, and the renter can present his customer's key and be present to see to it that his private papers, of no present pecuniary value, are not read or taken away, and if he do not take the said steps, any objectionable result is from his own fault or neglect.

Affirmed.