Caruthers Jones Shoe Co. v. Chickasaw County Bank , 112 Miss. 650 ( 1916 )

Holden, J.,

delivered the opinion of the court.

The appellee suggests that we erred in our decision of this case, 73 So. 49, in that we misunderstood the facts in the record with, reference to the time when the answer of the garnishee was filed, and claims that the answer was filed within the time prescribed by law. We gathered from the record, and from the undisputed statement in the brief of counsel for appellant, that the answer, for which the seventy-five dollars was allowed as attorney’s fee for defending when contested by the plaintiff, was not filed within the time required by law, and we treated it as the only answer filed in the case. It does not appear that any compensation was or could have been allowed for the first attempt to answer; as no attorney’s services were had in connection with the preparation and filing of the first so-called answer. However, if we concede that the contested answer was filed within the time required by law, still the decision must' stand, because the law as announced in Bernheim Bros. & Uri v. Brogan, 66 Miss. 184, 6 So. 649, clearly precludes appellee from recovering the seventy-five dollars which was claimed, proved, and allowed as attorney’s fee solely for defending the contested answer; and we again respectfully cite counsel to the decision in the above case.

Overruled.