Caruthers-Jones Shoe Co. v. Chickasaw County Bank , 112 Miss. 315 ( 1916 )

Holden, J.,

delivered the opinion of the court.

From a judgment in favor of appellee, Chickasaw County Bank, in the circuit court of Chickasaw county, appellant appeals to this court. The controversy in the court below, stated briefly, is founded on the following facts: The appellant had an enrolled judgment against W. A. Tabb, who was employed as cashier of the ap-pellee bank. Appellant had a writ of garnishment issued against the appellee bank, commanding it to answer on a certain day as to whether or not it was indebted to the said Tabb, cashier. Appellee filed its answer, denying any indebtedness. Tbe answer was-regular in all respects, but it was not filed “witbin tbe time prescribed by law.” However, after tbe answer was filed tbe appellant appeared by counsel and objected and excepted to tbe answer of tbe garnishee, and proceeded to contest tbe truthfulness of it, all of which was-done in good faith by tbe appellant. Tbe court, after bearing tbe objections and tbe contest to tbe answer, rendered judgment dismissing tbe garnishee and adjudging the sum of seventy-five dollars as attorneys’' fees against tbe appellant. Tbe appellant, excepting to-this action of the lower court, appeals here and contends that tbe circuit judge erred in giving judgment for seventy-five dollars against tbe appellant, for tbe reason that no attorneys ’ fees can be recovered in this ease.

We do not think that section 2361, Code of 1906, grants authority to tbe judge to allow attorneys’ fees to tbe garnishee for defending bis answer in.cases where tbe answer of tbe garnishee-is objected to and contested by tbe plaintiff in garnishment; and it is so held in Bernheim Bros. & Uri v. Brogan, 66 Miss. 184, 6 So. 649. While tbe statute provides that:

“Tbe garnishee shall be allowed for bis attendance, . . . provided be shall put in bis answer witbin tbe time prescribed by law, tbe pay and mileage of a juror, and in exceptional cases rendering it proper, tbe court may allow tbe garnishee reasonable compensation additional to tbe foregoing,” etc. — we jdo not think that tbe appellee bank can be allowed any compensation or fee whatever in this case; for it appears, undisputed, that tbe bank failed to “put in (its) answer witbin tbe time prescribed by law.” Consequently, tbe appellee was-not entitled to be allowed tbe pay and mileage of a juror;: and if be could not be allowed tbe pay and mileage of a juror, under tbe statute, be could not be allowed any other compensation, even though it be an exceptional case rendering it proper, because tbe compensation in exceptional cases is only allowed in addition to tbe pay and mileage of a juror, when Ms answer is filed witMn the time prescribed by law. A right to an allowance in the first instance must exist before any “additional” compensation can he allowed.

The judgment of the lower court is reversed, and judgment entered here for appellant.

Reversed.