I think the judgment rendered by the court below was erroneous for two reasons: First, the answer of the garnishee was not contested, and only the indebtedness admitted in the answer would be subject to the demand of the plaintiff, appellee here; and, second, the contents of the safety deposit box, under the facts disclosed in this record, are not subject to garnishment.
The facts are that the Clover Farms Dairy secured a judgment against Mrs. A.E. Wineman, and upon being informed that the First National Bank of Greenville was indebted to Mrs. A.E. Wineman, prayed for and secured a writ of garnishment which was served upon the First National Bank. The bank filed its answer at the July, 1932, term, admitting an indebtedness to Mrs. Wineman in the sum of ninety-three dollars and thirty-six cents evidenced by money on deposit which bore no interest; and after the usual averments in answers in garnishment, it then set forth as follows: "Further answering, this garnishee would respectfully show that Mrs. A.E. Wineman has rented from it a safety deposit box which is situated in the vault of this garnishee. This garnishee is not advised and does not know what are the contents of said box. Garnishee would show that it does not have control or possession of the contents of said box and is therefore unable to describe said contents." The answer was duly sworn to.
Thereafter, the garnishee filed a supplement to its answer stating that it had been informed that the contents of the lock box were claimed by Imelda Wineman, *Page 595 a minor, and asked for process requiring Imelda Wineman to appear and make claim to the contents of the aforesaid lock box. On July 25, 1932, the said Imelda Wineman, by her mother and next friend, filed a formal claim for the contents of the lock box. On October 18, 1932, the plaintiff in judgment filed a motion to have the court direct the garnishee, First National Bank, to open the deposit box belonging to Mrs. A.E. Wineman for the purpose of ascertaining and reaching its contents; to have Mrs. A.E. Wineman and Imelda Wineman present, and to have made a complete inventory of the articles found therein, and to be permitted to prove that said box was rented by Mrs. A.E. Wineman. This motion did not contain any statement or averment as to what the contents of the box were, and the record shows no proof upon the motion; but the motion was overruled by the court.
Imelda Wineman filed a motion on the same day asking the court to discharge the garnishment writ, and to direct that the property levied on be surrendered to claimant in accordance with section 3427, Code 1930, and alleged that: "In support of her motion, this movant says the plaintiff in execution in this cause has defaulted in the making up of an issue for the trial of the right of the property levied on herein at the term of this court to which the execution was returnable, to-wit, the July term, 1932, this movant having, in due time, filed her claim to said property and tendered issue to plaintiff in execution."
The Clover Farms Dairy, plaintiff in the garnishment proceedings, filed a denial of the claim of Imelda Wineman to the property, saying that the property belonged to Mrs. A.E. Wineman, and was liable for the process, and prayed that an issue be made up between the parties to try the right of property at that term of court.
It will be noted that the bank admitted an indebtedness to Mrs. A.E. Wineman of ninety-three dollars and thirty-six cents. *Page 596
Imelda Wineman, the claimant, filed a claim to all the property involved.
The plaintiff, not having contested the answer of the garnishee, was limited to the amount admitted to be in its possession or under its control. Williams v. Jones, 42 Miss. 270; Mechanics' Traders' Ins. Co. v. Butler, 115 Miss. 476, 76 So. 521; Consumers' Ice Co. v. Cook Well Co., 71 Miss. 886, 16 So. 259, and Grenada Bank v. Seligman, 164 Miss. 168, 143 So. 474, 475.
It was, therefore, error for the court to render a judgment directing the garnishee, the First National Bank of Greenville, to turn over to the sheriff the contents of the safety deposit box. Under these decisions, the plaintiff, by not having contested the answer, was not entitled to impound the contents of the safety deposit box, even if it were subject to the garnishment. I do not think the contents of the lock box, whatever they might be, were subject to the garnishment, and I do not think the court had any power to direct the garnishee to open the box and turn the contents over to the sheriff.
It will be noted that the court overruled the motion to have the box opened, and the garnishee to amend its answer so as to show what the contents were, and to have some person present representing all the parties to see what was in the box, and what was delivered to the sheriff. The order of the court, as made, was not for the sheriff to take possession of the safe, open the box, secure the contents, and return an inventory to the court for adjudication as to whether the same were liable to the judgment debt.
Section 1838, Code 1930, provides that: "On the suggestion in writing by the plaintiff in a judgment or decree in any court upon which an execution may be issued, that any person is indebted to the defendant therein, or has property of the defendant in his hands, or knows of some other person who is so indebted, or who has effects or property of the defendant in his hands, it *Page 597 shall be the duty of the clerk of such court, or of a justice of the peace in a case before him, to issue a writ of garnishment, directed to the sheriff or proper officer, commanding him to summon such person as garnishee to appear at the term of the court to which the writ of garnishment may be returnable, to answer accordingly."
It will be noted that the expression used in this section is "indebted to the defendant therein or has property of thedefendant in his hands."
Section 1843, Code 1930, reads as follows:
"Every person duly summoned as a garnishee shall answer on oath as to the following particulars, viz:
"First. — Whether he be indebted to the defendant or were so indebted at the time of the service of the writ on him, or have at any time since been so indebted; and, if so indebted, in what sum, whether due or not, and when due or to become due, and how the debt is evidenced, and what interest it bears.
"Second. — What effects of the defendant he has or had at the time of the service of the writ on him, or has had since, in his possession or under his control.
"Third. — Whether he knows or believes that any other person is indebted to the defendant; and, if so, whom, and in what amount, and where he resides.
"Fourth. — Whether he knows or believes that any other person has effects of the defendant in his possession or under his control; and, if so, whom, and where he resides."
Section 1844, Code 1930, provides that all property in thehands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment, shall be bound by and be subject to the lien of the judgment, decree, or attachment on which the writ was issued.
The record does not show, in this case, that the safety deposit box can be opened without irreparable injury, nor any manner in which it may be opened. The testimony shows that it cannot be opened except by having *Page 598 a master key, and the key held by the person who rents the box, and that both the lessee of the box, and some employee of the bank with the master key, must be present when any box is opened. It is the duty of the bank, when required by the lessee, to produce this master key and assist in opening the box. The bank has no power or right to go into a box for any purpose. It is not a depository for hire, for a depository for hire is one in whose hands the property is placed, and must secure such property, and may use its own means and methods for safe-keeping the same. Here, the bank has no power at all to get into the safety deposit boxes, and no right to go into them, and the testimony in the case shows clearly that the lessee has the exclusive control over said safety deposit box, and has the legal right to have the bank assist in the opening of said box whenever same is desired by the lessee.
Therefore, the bank, in my opinion, has no sort of possession or control over the contents of said safety deposit box. Renting of such boxes is similar to the leasing of an apartment. In such case the owner of the apartment is not deemed to have possession or control thereof, unless special provisions are made in the lease therefor. Commonwealth v. Wentworth, 146 Mass. 36, 15 N.E. 138; State v. Frazier, 79 Me. 95, 8 A. 347. See, also, definitions in Words and Phrases, Second Series, vol. 1, p. 1021 et seq.
The words "in his hands," in section 1838, Code 1930, mean that the party garnished must have within his ready control or within his power to produce in court, the property or effects which are sought to be impounded by the garnishment. "Control," in the sense of the statute, does not mean that the garnishee has the power to prevent the owner of a safety deposit box from going into it; but means such a possession and capacity to take and deal with, and produce in court, as would enable a garnishee to relieve himself of all liability by *Page 599 thus producing the property, which right is clearly given by section 1844, Code 1930.
If it be true that the garnishee may, by delivering to the sheriff the property, relieve himself of liability, the statute does not contemplate that he shall have to enter by force and damage the vault in order to produce the property.
In the case before us, the garnishee is directed to deliver the property, although there is no method by which it can do so without employing experts and doing violence to the vault. There is no method given the garnishee by which it can gain access to the safety deposit box to secure possession of such property. The order, as made, is not capable of being complied with. If it should be, the bank would be liable to the person whose box was forcibly opened. If it should not be complied with, which the record does not show, the judgment must be paid by the garnishee. In the cases cited in the majority opinion, the court relied upon statutes of other states as construed by their courts, which gave the court power of discovery. Such does not exist in this state, as it is a common law state except as modified by statute. And there is no statute in this state giving the circuit court the power to compel discovery and produce such information or property. I have searched the statutes and have found no statute similar to this in other states. The statutes in other states relied upon seem to have been greatly expanded by construction, and the courts in construing the statutes read into them provisions for safeguarding the rights of all parties by having them personally present and directing that they take inventories.
In the motion to have the box opened, counsel evidently relied upon these cases; but the court below refused to direct the box to be opened and to provide such safeguards.
I find no statute authorizing either the court or the *Page 600 sheriff to enter upon and search safety boxes or receptacles by force, breaking, and entering.
It seems to me that unless the court had the power of discovery, it could not determine what was in the safety deposit box.
It may be that the chancery court, which acts upon the person, might have power over the lessee of the box, and might enforce compliance with its order by imprisonment for contempt; but the circuit court has never been given such power. The sheriff has not been given such power by any statute, and it seems to me that he could not be authorized so to do under section 23 of the Constitution, until the Legislature has provided a reasonable scheme founded upon information, supported by affidavits showing what property was in such a safety deposit box. Certainly, a sheriff cannot break into a safety deposit box and take possession of anything found, until and unless he had an affidavit stating what property was to be found therein; and a writ authorizing him to break and enter it clearly was not competent to be authorized by the court below. Such an order was clearly beyond the power of the court.
I think the judgment rendered should therefore be reversed, at least such part as dealt with the safety deposit box.
The judgment for the ninety-three dollars and thirty-six cents admitted to be due is unobjectionable.
McGowen, J., concurs herein.