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FIRST MISSISSIPPI NATIONAL BANK v. KLH INDUSTRIES

JULY 18, 1984

FIRST MISSISSIPPI NATIONAL BANK
v.
KLH INDUSTRIES, INC., ETC.



BEFORE ROY NOBLE LEE, P.J., BOWLING AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT

I.

We are here required to consider for the first time the applicability of the Mississippi Rules of Civil Procedure to that form of action heretofore juridically but now only colloquially known as garnishment. We hold that a garnishment action is a civil action subject to the Rules the same as any other civil action.

 Applying the Rules to the instant action we must vindicate KLH Industries, Inc., the Defendant below. First Mississippi National Bank's complaint (formerly suggestion for garnishment) in no way asked judgment against KLH in any monetary sum. The default judgment entered in favor of FMNB and against KLH in the amount of $9,782.60 was a judgment different in kind from that demanded in FMNB's complaint. By virtue of Rule 54 (c) a judgment by default shall not be different in kind or exceed in amount that prayed for in the demand for judgment. Accordingly, the trial judge correctly vacated the default judgment originally entered in favor of FMNB and against KLH. We affirm.

 II.

 On May 19, 1982, well after the effective date of the Mississippi Rules of Civil Procedure, First Mississippi National Bank commenced this action. On that date FMNB filed in the Circuit Court of Jefferson Davis County its complaint against KLH Industries, Inc. The complaint was entitled, consistent with then only recently superseded nomenclature, suggestion for writ of garnishment.

 The complaint alleged that FMNB held an unsatisfied judgment against Cordelia Clark in the sum of $10,182.60. The judgment was said to have been entered on January 11, 1978, and the judgment amount of said to bear interest at the rate of 8% from that date.

 The complaint then charged" that KLH Industries, Inc., a Mississippi Corporation, of Jackson, Hinds County, Mississippi,

 is indebted unto said Defendant, or has property of said Defendant in its possession or under its control, or knows of some other person who is so indebted, or who has effects or property of the said Defendant in his hands. "

 Nothing in the complaint demands judgment against KLH in the amount of $10,182.60, or in any other amount. Because of the provisions of Rule 54 (c), Miss.R.Civ.P., this omission is of controlling significance.

 The record reflects that on May 24, 1982, process, denominated" writ of garnishment ", was formally executed upon KLH Industries, Inc. via Kenneth G. Humer, an agent for KLH. The process advised KLH that it should answer on or before August 16, 1982. The process also advised KLH of FMNB's claim that it held a judgment against Cordelia Clark. Significantly, the process in no way advised KLH that its failure to answer would result in monetary judgment being entered against

 For reasons never explained in the record, KLH filed no answer - not within thirty days nor by August 16, 1982.

 On September 1, 1982, FMNB filed a motion for default judgment against KLH. A copy of the motion was served upon KLH. This motion made no demand for judgment against KLH in the amount of FMNB's judgment against Cordelia Clark unless such a ...


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