* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 696, n 61; Garnishment, 28CJ, p. 404, n. 65 New; p. 406, n. 89. The appellee sued the appellant in the court of a justice of the peace for one hundred thirty-three dollars and eighty-six cents due him for wages. The defendant tendered thirty-five dollars and fifty-six cents, conceding that amount to be due, but suggested that in a suit of one Whitten against Sanders, a judgment was rendered against Sanders in the court of the justice of the peace of H.F. Young, a justice of the peace of Union county, Miss., and that in said suit judgment was obtained against Sanders for eighty-eight dollars and fifty cents and costs, and that the appellant was garnisheed in said suit and judgment rendered against it, which it had satisfied and paid.
The case was tried upon an agreed statement of facts in the circuit court, which statement reads as follows:
"It is agreed by and between counsel for plaintiff and counsel for defendant in the above styled cause that this matter may be submitted to Judge Thos. E. Pegram for decision in vacation on the following facts, to-wit: The defendant, T.J. Sanders, was, on and prior to the 1st day of December, 1924, employed by the Gulf, Mobile Northern Railroad Company as repair track foreman in its shop at New Albany, Miss., in Union County. On the said 1st day of December, 1924, a summons was duly issued against the said T.J. Sanders by H.F. Young, justice of the peace of the Fourth district of Union County, *Page 497 Miss., requiring him to appear at New Port, Miss., on the 3d day of January, 1925, at ten o'clock a.m., then and there to defend the suit of H.E. Whitten. The said summons was duly served on the said Sanders by J.H. Thornton, constable, on the 5th day of December, 1924. The said Sanders failed to appear on the return day and answer the said suit of H.E. Whitten, and a judgment by default was taken against him in favor of Whitten in the sum of eighty-eight dollars and fifty cents and costs. No appeal was perfected from this judgment."
The cause was submitted to the circuit judge on the agreed statement of facts and by him taken under advisement, and judgment was rendered against the railroad company for the full amount sued for, from which judgment this appeal is prosecuted.
It is conceded by the appellee that the judgment in the court of the justice of the peace of H.F. Young, justice of the peace, against Sanders was a valid judgment, but it is contended that Sanders is entitled to the judgment obtained because the railroad company did not answer the will of garnishment by noon on the return day, and, by reason of failure to answer, judgment was rendered against it, and that such rendition of judgment, being due to the fault of the railroad company, did not entitle the railroad company to set off the amount of such judgment against its payment. It is claimed that the case of Laurel v. Turner,80 Miss. 530, 31 So. 965, controls and upholds the validity of the appellee's victory before the circuit court.
It will be seen from the agreed statement of facts that there is nothing to show that Sanders is the head of a family and entitled to the exemptions allowed heads of families by statute. In the case of Laurel v. Turner, the person recovering there was the head of the family and his wages were exempt, so we think that the case is not controlling here, although the defendant did not answer the writ of garnishment in the time required by law, *Page 498 and had to satisfy the plaintiff on that judgment date, but had to do so by virtue of the garnishment proceeding; and, having satisfied Whitten's demand by virtue of the garnishment proceeding, the company was entitled to be subrogated to the rights of the judgment creditor in that judgment. It was the duty of the plaintiff in the present case, if he was the head of the family and entitled to the exemption, to have made that claim in the court below and sustained it by appropriate proof. We cannot here take cognizance of that fact, if it be a fact, but must render judgment upon the record before us.
We are of the opinion that the judgment of the court below was wrong and the contention of the railroad company should have been sustained. Judgment will therefore be reversed and judgment rendered here for the railroad company.
Reversed, and judgment here for appellant.
Reversed.