IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CA-00540-SCT

DIANNE CARTWRIGHT

v.

DEPOSIT GUARANTY NATIONAL BANK

DATE OF JUDGMENT: 05/07/93

TRIAL JUDGE: HON. JAMES E. THOMAS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DAVID P. OLIVER

ATTORNEYS FOR APPELLEE: EUGENE L. FAIR

SUSAN K. STEADMAN

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 6/6/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/27/96

BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

¶1. At the request of Deposit Guaranty National Bank, Harrison County County Court issued a garnishment

against an account of Diane Cartwright on deposit at Hancock Bank. Cartwright, a judgment debtor of

Deposit Guaranty, attempted to claim the account and the funds it represented as exempt property pursuant

to Miss. Code Ann. §85-3-1 (1972). The county court found that the account was not exempt, since it was

not "tangible personal property" under the terms of the statute and that at best it was a debt of the bank to

Cartwright subject to garnishment. On appeal to the circuit court, the county court order was affirmed.

¶2. The issue before us today is whether a bank deposit or account is exempt from garnishment pursuant to

Miss. Code Ann. §85-3-1 (1972). More specifically, our decision turns on whether such funds are

"tangible" or "intangible." We hold today that funds on deposit are in the nature of intangible property and

therefore subject to garnishment.

¶3. Section 85-3-1 is the general exemption statute and in pertinent part states, "[t]here shall be exempted

from seizure under execution or attachment: (a) tangible personal property of any kind not exceeding $10,

000 in value which shall be selected by the debtor provided. . . ." Miss. Code Ann. §85-3-1 (1972).

¶4. Cartwright maintains that her money on deposit is tangible personal property pursuant to the statute.
Cartwright cites Garrett v. Gay, 394 So. 2d 321 (Miss. 1981), as support for her position. In Garrett, the

Court held that a chose in action was included in the term personal property. Id. at 322. Garrett does not,

though, differentiate between intangible or tangible personal property.

¶5. We agree that a chose in action, i.e., Cartwright's right to recover her money from Hancock Bank, is

personal property. Yet, Section 85-3-1 restricts the exemption to $10,000 worth of tangible personal

property.

¶6. Black's Law Dictionary divides personal property into either 1) corporeal personal property which

includes movable and tangible things, or 2) incorporeal personal property evidencing rights, such as stocks,

shares, patents, etc. Black's Law Dictionary 1217 (6th ed. 1990). Cartwright's deposit with Hancock

Bank represents a right of payment to her from the bank. In other words the account is incorporeal

personal property. Its very nature indicates that it cannot be physically possessed as tangible property can

be. Moreover, in Watson v. Caffery, 236 Miss. 223, 109 So. 2d 862 (1959), a will construction case, the

Court found that the testatrix owned "intangible personal property consisting of bonds and money on

deposit in [the] bank." Id. at 867 (emphasis added).

¶7. We think that the nature of deposit accounts was most aptly described by the Court of Appeals of

Florida in Williams Management Enterprises, Inc. v. Buonauro, 489 So. 2d 160 (Fla. Dist. Ct. App.

1986). The Buonauro Court stated, "[t]he corporation could not replevy its own funds or monies on

deposit from its own bank because its corporate deposits have changed their form from tangible currency

and checks into intangible accounting credits and cannot be specifically identified as tangible property." Id.

at 165. See also In re Estate of Larson, 538 N.W.2d 802 (Wis. Ct. App. 1995); Walther v. Central

Trust Co., N.A., 590 N.E.2d 375 (Ohio Ct. App. 1990). Likewise, Cartwright's deposit has changed its

form from tangible currency into intangible accounting credits.

¶8. In accordance with this Court's statement in Caffery and the general meaning of incorporeal property,

we hold that money on deposit in a bank evidences a right of payment from the bank and is thus intangible

in nature. The legislature has restricted the personal property exemption to tangible personal property.

Therefore, Cartwright's money deposited with Hancock Bank does not qualify for an exemption under

Miss. Code Ann. §85-3-1 (1972).

¶9. AFFIRMED

SULLIVAN, P.J., BANKS, McRAE, ROBERTS, SMITH AND MILLS, JJ., CONCUR. LEE,

C.J., AND PRATHER, P.J., NOT PARTICIPATING.