Mills v. Ward

Sykes, P. J.,

delivered the opinion of the court.

This cause was by agreement tried before the circuit judge without a jury, upon the following agreed statement of facts:

“It is agreed by and between the plaintiff and the defendant that the following is a true and correct statement of facts in the above styled case, now pending in the circuit court of the second judicial district of Jones county, Miss., and that the said case may be tried by the presiding judge on the said statement, a jury being expressly waived:

“That the plaintiff is a corporation organized under the laws of the state of Mississippi, and domiciled at Laurel, Miss., and the defendant is a nonresident of the state of Mississippi; that the defendant was an employee of the plaintiff, and lived in the city of Laurel, Miss., at one time, and while so employed he suffered a personal injury; that he sued the plaintiff on account of the said injury, and obtained a judgment against the plaintiff for the said injury in the sum of one thousand dollars; that at the time he procured the said judgment he was a nonresident of the state; that, after the defendant suffered the said injury, he made application to the plaintiff, and procured advances from the plaintiff as money loaned in the sum of ninety dollars; that the said sum has not been paid to the plaintiff by the defendant; that when the defendant’s case against the plaintiff for damages, which resulted in a verdict of one thousand dollars, as aforesaid, was tried, there was testimony before the jury on the trial of the said case introduced by Laurel Mills, with reference to the said advances; that the Laurel Mills did not plead the said advances, totaling the said sum of $-1 as an off-set, nor undertake to reduce damages by instructions of the court to the jury; that the said advances were made by said Laurel Mills to said Ward as follows: . . . that the said Ward is a resident citizen of the state of South Carolina; that the said judgment of one thousand dollars against the said Laurel Mills and in favor of the said J. W. Ward was appealed from by the plaintiff, Laurel Mills, to the supreme court, with a super sedeas, and was affirmed by-said court and a mandate from said court sent in said case to the circuit court of Jones county, Miss.; that in this court the said cause was styled J. W. Ward v. Laurel Mills, No. 2017; that in the supreme court of the state of Mississippi the said case was styled Laurel Mills v. Ward, No. 23644, the opinion of the said case being reported in Atterbury & Nichols v. Hopkins & Schrenk, 122 Mo. App. 172, 99 S. W. 11; that on the trial of this case reference to the record in said case No. 23644 in the supreme court of the state of Mississippi may be made as often as is necessary, and any pertinent and competent fact appearing from the said record, particularly, the pleadings and the testimony, with reference to the advances sued for in this case, may be had and may be considered by the court in the determination of the pending cause; that plaintiff, Laurel Mills, would not pay the said judgment of one thousand dollars rendered against it, claiming that J. W. Ward owed it at the time the sum of ninety dollars advanced to him as aforesaid; that then an execution was issued by the clerk of the circuit court of Jones county in said case against the said Laurel Mills for one thousand dollars, with interest and damages, and the sheriff of Jones county armed with said execution made demand upon the said Laurel Mills for said judgment, whereupon the said Laurel Mills paid over to the sheriff, in order to prevent a levy upon its property, the amount of the said judgment, with interest and costs; that then the Laurel Mills instituted this its suit by attachment in the justice of the peace court of beat Ño. 2 of Jones county, Miss., against J. W. Ward for the said sum of ninety dollars advanced him, as aforesaid, the said J. W. Ward being then and there a nonresident of .the state of Mississippi; that the only property of the said J. W. Ward found by the constable was the money paid over to the sheriff under execution in the said case of J. W. Ward. v. Laurel Mills, and a writ of garnishment was served on the sheriff, Luther Hill, who held the said money under the said writ of execution; that the sheriff answered the said garnishment, admitting having the said funds in his hands, and reference to the said writ of garnishment and answer is here made, and the same may be considered as evidence in this cause; that the defendant filed a plea in abatement in the attachment suit in the justice court, defending the said suit on the grounds that the money in the hands of the sheriff was in custodia legis, and not subject' to attachment or garnishment, and further claimed that the said money was exempt under chapter 146, Laws of 1914, exempting all money recovered on account of personal injury, and further claimed that the matter was res adjudicata, having- been adjudicated in the original suit, herein referred to; and that the said trial in the justice court resulted in judgment for the plaintiff, Laurel Mills,.and that the defendant has appealed, and the case is to he decided here upon three propositions, namely: (1) Is the matter res adjudicata? (2) Were the funds in custodia legis or subject To attachment or garnishment? (3) Were the funds exempt because of being money received on account of personal injuries ? ’ ’

The learned circuit judge rendered a judgment in favor of the defendant, Ward, on both the attachment and the debt issues, from which judgment this appeal is here prosecuted.

■ In this agreed statement of facts three questions were submitted to the circuit judge for adjudication.' We shall take up and decide these questions as presented in the agreed statement of facts.

First. Is the matter res adjudicata? In the damage suit of Ward v. Laurel Mills, the mill filed no claim asking that this amount be set off against the claim of Ward, or that it be credited with this amount on any judgment Ward might recover. Neither was any such request made in the instructions granted the defendant in that cause. From which it follows that this question was not adjudicated in that case.

Second. Were the funds in custodia legis or subject to attachment or garnishment? That these funds are subject to garnishment was decided by this court in the case of Burleson et at. v. Milan, 56 Miss. 399.

Third. Were the funds exempt because of being money received on account of personal injuries? Section 1 chapter 146, Laws of 1914 (section 1815, Hemingway’s Code), provides that the proceeds of any judgment not exceeding ten thousand dollars, recovered by any person on account of personal injuries sustained shall inure to the party in whose favor- such judgment shall be rendered free from all liabilities of the debts of the person injured. This act'upon its face applies to both residents and nonresidents of the state. This act does not appear in the Code of 1906, consequently section 2162 of the Code of 1906 (section 1838, Hemingway’s Code), which provides that the exemptions in this chapter shall be allowed in favor of residents of this state only, does not apply to this act.

The fact that the legislature, by chapter 286, Laws of 1922, adopted an act that Hemingway’s Code be adopted as an official compilation of the statutes of the state of Mississippi, and be received as the statute la.w, does not make section 1838, relating to residents, apply to chapter 146. Hemingway’s Code by the act of the legislature is an official compilation of the statutes. It has not, been adopted as the Code of Mississippi. See act of adoption of the Code of Mississippi sections 1 to 6 (Code 1906, p. 135). Section 1838, Hemingway’s Code, only relates to and limits those sections found in the Code of 1906. This money is therefore exempt to the appellee, Ward, under this act.

On the debt issue, however, under the agreed statement of facts, Ward is indebted to the appellant, Laurel Mills, for the amount sued for, namely, ninety dollars. Judgment was rendered for this amount in favor of the appellant in the justice of the peace court, and the appellee War'd appealed to the circuit court. The circuit court should have rendered judgment in favor of the appellant against Ward and his bondsmen for this amount. To this extent only the judgment of the lower court is reversed, and judgment for appellant entered here.

Affirmed in part, reversed in part, and judgment here,