Dew v. Bank of the State , 9 Ala. 323 ( 1846 )

COLLIER, C. J.

In Caldwell v. Meador, 4 Ala. R. 755, it was decided that a justice-of the peace has no authority, in virtue of our statutes, to issue an attachment returnable into the County or Circuit Court of any other county than that for which he is elected. That case was reaffirmed in Brooks & Lucas v. Goodwin, at the last term, where it was added, that although the irregularity was not insisted on in the primary court, it was available on error.

Loomis v. Allen, cited for the defendant in error, is unlike the present case in every respect. There was no controversy in that case as to the authority of the officer who issued the attachment, but the question was as to the sufficiency of the affidavit; and it was said, the objection should have been taken by plea in abatement, and was not available after judgment by default.

The attachment being void, it necessarily follows, that the garnishment, which is merely consequential, must fall with it.

But if the attachment was issued by a competent authority, the judgment against the garnishee would be erroneous, because it does not appear that he was served with a scire facias. Lowry et al. v. Clements, at this term, is conclusive upon this point.

The judgment of the Circuit Court is reversed.