Moody & Williams v. Dye , 125 Miss. 770 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This appeal presents a suit which was started by a bill filed by appellee Dye seeking to vacate a judgment against him as garnishee, and to perpetually enjoin execution under it. From a decree sustaining the bill appellants, Moody & Williams, assignees of the judgment against Dye appeal.

Briefly stated, in 1915 W. T. Pitts sued and recovered judgment against E. B. Cook for two thousand, eight hundred and ten dollars as damages for breach of a contract. Garnishment upon this judgment in favor of Pitts was issued against appellee Dye, and .a judgment for the amount of two thousand, eight hundred and ten dollars was rendered against him as garnishee. Several executions were issued on this garnishment -judgment, but returned nidia bona. Pitts then assigned the judgment to the appellants, Moody & Williams, who were the attorneys for „ Pitts in the litigation. Finally execution under the judgment was levied upon tlie land of appellee Dive, whereupon he filed the bill in this cause to vacate the judgment and enjoin the execution.

In the meantime, Cook, the judgment debtor in the main judgment, appealed to the Supreme Court, which reversed the main judgment obtained by Pitts against him. See Coole v. Pitts, 114 Miss. 39, 74 So. 777.

The original bill of appellee Dye based its claim for relief upon the ground that, the judgment of Pitts against Cook having been reversed by the Supreme Court, the garnishment proceedings and judgment based upon it fell with the judgment, and that no execution could be issued on it. To put it in another way, the contention is that the garnishment proceedings and judgment against the garnishee was incidental to and dependent upon the main judgment of Pitts against Cook, and that when the main judgment was reversed and annulled then the judgment against the garnishee ipso facto became null and void, for the reason that when the main judgment is extinguished by annulment the judgment against the garnishee can no longer rest upon it and must fall.

The contentions made by the appellant in opposition to the position of the appellee are that appellee Dye is attacking the judgment of Pitts against Cook by a collateral proceeding, which cannot be done; that the appellee Dye failed to.protect himself against a void judgment under section 2350, Code of 1906 (Section 1945, Hemingway’s Code) ; that the right to vacate the garnishment judgment when the main judgment is reversed can be exercised only as between the parties to the original judgment; that the judgment against the garnishee did not fall with the reversal of the main judgment, as it was not appealed from and could be resisted only by the original judgment debtor; and, finally, it is contended that appellee was not entitled to relief because he did not offer to do equity in the case.

We are of the opinion .the true rule is that a judgment against a garnishee cannot stand where the judgment in the main action has been reversed. The garnishment proceedings grow out of and are incidental to the main judgment, .and a judgment against a garnishee rests upon the main judgment which gives it life, and when the main judgment is annulled the garnishment judgment must fall Avith it. The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and if there be no main judgment to enforce because of its annulment, then the purpose and life of the judgment against the garnishee is ended. Therefore the judgment against the appellee Dye, as garnishee in the original suit, Avas extinguished Avhen the main judgment was annuled by reversal of the Supreme Court. 4 C. J. 1205 and notes; 2 R. C. L. 271.

Counsel for appellants do not seem to dispute the principle announced above, but make the contention that the rule can be applied only as between the original parties to the main judgment, and that Cook only could complain at the judgment against Dye. It is our conclusion that the appellee, as a party to the judgment, Avas well within his rights to protect himself against execution under the void garnishment judgment after the annulment of the main judgment and when execution was levied against his property it also appearing in this record that Dlye was liable to and did pay Cook the amount of his indebtedness to him. 12 R. C. L., sections 100, 109; Chicago v. Bryan, 195 Mo. 590, 92 S. W. 906. In Railroad Co. v. Crawley, 118 Miss. 272, 79 So. 94, the main judgment was not annulled.

As to the contention of appellant with reference to the collateral attack of the judgment, we think there is no merit in the point, because the attack is directly to vacate tiie judgment and enjoin process thereunder, because of its invalidity by extinguishment.

As we have already said in this opinion, the judgment against the garnishee must fall when the main judgment is annulled. Counsel cites the case of Alexander v. Dulaney, 16 So. 355, which in turn cites the case of Willis v. Loeb, 59 Miss. 169, and contends that the Dulaney Case announces the opposite rule in this state. We disagree with counsel, in this claim, as a careful study of the Du-laney and Willis Cases will demonstrate, regardless of some language inadvertently used by the court, it was not intended to be announced that where the main judgment is reversed any other judgment incidental to or depending upon the main judgment would not fall. However, in that case the litigation was between the attaching creditor and debtor and the claimant of the property. But we recognize the principle involved as analogous, if not exactly similar, to the one under discussion.

The last point presented by appellant, that it was incumbent upon the appellee to do equity before asking equitable relief, is without merit, because, as we see it, he was under no duty or obligation flowing from good conscience to offer anything to the appellants in satisfaction of their void claim, as evidenced by the extinguished judgment.

The judgment of the lower court is affirmed.

Affirmed.