Opinion
No. 34239.
October 14, 1940.
1. JUDGMENT.
The lien of an enrolled judgment does not cover the right to receive or recover a debt due to the judgment debtor.
2. PARTIES.
In action to recover alleged balance due on a road contract, a judgment creditor of the complainant was not entitled to intervene by petition praying that, if complainant recovered anything, a sufficient sum should be set aside in the decree to satisfy creditor's judgment, where no money had been deposited in court, no agent of the court had taken any property in hand for disposition by the court, and no property in which judgment creditor had any immediate interest was so involved that it would be jeopardized or that its title would be beclouded by any decree made in the original suit.
3. PARTIES.
Intervention is an "interlocutory proceeding" dependent upon and subsidiary to the case between the original parties, and, where the decree as between the original parties is one of final dismissal, no money is in court, no property is in the hands of the court for disposal or distribution, and the decree does not act on any property or its title or possession, the intervention goes out with the original suit.
APPEAL from the chancery court of Pike county; HON. R.W. CUTRER, Chancellor.
Jones Ray, of Jackson, for appellants.
The Natalbany Lumber Company had no right to intervene in the suit of A.P. Johnson vs. Shuptrine Construction Company, et al.
Art. 6, Chap. 151, Code of 1930.
In the absence of a statutory right, the right of intervention by one in the position of appellee does not exist in this state.
Crystal Springs Bank v. N.O. Cattle Loan Co., 95 So. 520; Turners v. Bank of Avera, 104 So. 455, 140 Miss. 1, 18.
The lien of the judgment does not attach by enrollment to a debt due by a third party to the judgment debtor.
Bryan v. Henderson Supply Co., 65 So. 242; R.F. Walden and Co. v. Yates, 71 So. 897; Bank of Monticello v. L.D. Powell Co., 130 So. 292; Simpson v. Smith, etc., Co., 22 So. 805.
Appellee had a plain, adequate remedy at law. If he wanted to reach any funds which appellants might have owed Johnson, it was his duty to file suggestion for a writ of garnishment in the office of the clerk of the court rendering the judgment in favor of appellee against Johnson and have the writ of garnishment served upon appellants in accordance with law. He cannot by an abortive intervention proceeding, which appellants knew nothing of until long after they had settled with Johnson, claim that appellants are indebted to him. He had no right to intervene in the proceedings between Johnson and the Shuptrine and their surety. His judgment, even if enrolled in Pike County, did not constitute a lien upon any fund which might have been found due Johnson, and he did not tie up the fund by a writ of garnishment against appellants.
A.J. Street, of McComb, for appellee.
Under Article 6 of Chapter 151 of the Code of 1930, appellee had right to intervene as do those who have taken part in a public work. The right does exist for such to intervene and to intervene is the correct method for them under that law. The law does not state that it is correct for such participants only to intervene nor does it state that others cannot do likewise as the proper method to enforce a lien.
Where funds of a debtor are in the hands of a court of equity a judgment creditor may file an intervening petition to have such funds of a debtor applied to his judgment and not be bound to resort to independent proceedings in equity.
12 Cyc. 45.
Intervention was the only and proper way and in this instance would cause no injury, whereas to enforce the lien would mean that a debtor who has persistently omitted to pay a just obligation would have it to pay and that this creditor-judgment holder would collect a debt he probably never will get another chance to collect.
Our enrolled judgment "is a lien on and binds all the property of the defendant within the county where so enrolled from the rendition thereof."
Sec. 611, Code of 1930.
Appellant argues that the judgment does not attach to a debt due a third party, citing Bryan v. Henderson, 65 So. 242. In this case one Dockery had given an order prior to the service of the writ to Henderson, a fourth party in the matter, the Board of Supervisors being the third. He cites further R.F. Walden Co. v. Yates, 71 So. 897, 899. This case also does not apply to instant one for the same reason of it involving a fourth party. In that case Judge Holden said: "It would also please a dodging judgment debtor by making the statute (611) ineffective as to him in such cases." The one in hand for instance. There must always be a third party in such actions.
A.P. Johnson sued appellants in the chancery court for an alleged balance due to the complainant by the appellants on a road contract. Within thirty days after the commencement of the suit, appellee filed therein its so-called petition of intervention, alleging that petitioner was a judgment creditor of the complainant, A.P. Johnson, and praying that if and when the latter recovered anything in his suit, there should be set aside in the decree a sufficient sum to satisfy the petitioner's judgment.
At the term of court next following the proceedings aforesaid, a decree was entered reciting that the parties to the original suit had compromised and settled the issues between them, and, accordingly, the suit was ordered dismissed. Later, but at the same term, the order of final dismissal was vacated, because of the fact that the petition of intervention had not been acted upon. Subsequently a demurrer was interposed to the intervention petition, which demurrer was overruled.
The lien of an enrolled judgment does not cover the right to receive or recover a debt. Bryan v. Hardware Co., 107 Miss. 255, 265, 65 So. 242. No money had been deposited in court, nor had any agent of the court taken any property in hand for disposition by the court. No property of the intervenor or in which it had any immediate interest was so involved in the suit as to be jeopardized or the title thereto beclouded by any decree which the court might make in the original suit. If such an intervention as here proposed were allowed, then any creditor of any complainant in any suit could intervene, if only he were a judgment creditor, which obviously is far beyond the permissible limitations applicable to petitions of intervention.
Moreover, when the original suit was dismissed, the petition for intervention went out also. Intervention is an interlocutory proceeding, a dependent upon, a subsidiary of, the case between the original parties, and when the decree as between the original parties is simply one of final dismissal, no money being in court or property in the hands of the court for disposal or distribution, and the decree does not in anywise act upon any property or its title or possession, as was the case here, there is nothing left upon which an intervention may stand; and, as already said, it goes out with the original suit.
Reversed, and petition dismissed.