Mayes v. Phillips

Mississippi Supreme Court October 15, 1882

Mayes v. Phillips, 60 Miss. 547 (Miss. 1882)

Cooper

Opinion of the Court

Cooper, J.,

delivered the opinion of the court.

The appellant could not be charged as garnishee, because *549of bis possession of promissory notes, due by third persons to the defendants Newman & Co. Drake on Attach., sect. 481, and authorities there cited. By the, Code of 1880, sect. 1765, judgments belonging to a defendant in execution may be sold as other goods and chattels, but such judgments cannot be said to be in possession of the attorney by whom they were recovered or are controlled; he cannot surrender them into the possession of the court, and could only satisfy any judgment which might be rendered against him as garnishee by proceeding to collect the judgment for the purpose of appropriating its proceeds to the payment of the judgment against himself. But the court has no power to compel him to so collect and pay over.

Judgment reversed.

Reference

Full Case Name: H. B. Mayes, Garnishee v. A. W. Phillips
Cited By: 1 case
Status: Published
Syllabus: 1. Garnishment. Possession of note. Judgment against attorney. It is error for the court to render judgment in'attachment against a garnishnee because of his having in his possession, for collection as an attorney, a promissory note due by a third person to the defendant. 2. Same. Judgment against attorney on judgment in favor of defendant. It is also erroneous to render judgment against a garnishee in attachment because of his having in charge for collection, as an attorney, a judgment which he has recovered in favor of the defendant in attachment against a third person, and this rule is unaffected by sect. 1765 of the Code of 1880, which authorizes the sale under execution of a judgment in favor of the defendant in the execution.