Gould v. Meyer , 36 Ala. 565 ( 1860 )

A. J. WALKER, C. J.

Justices of the peace have authority to issue garnishments, for the collection of judgments rendered by them. Section 2471, found in chapter 20, title i, part 3, of the Code, authorizes the issue of garnishments-for the collection of judgments.; but it contains provisions indicating that it was not designed to include justices,of the peace. Section 2819 of the Code declares, that the provisions of the title above referred Jo, so far as they are applicable to suits before justices, and not contradicted by any provisions of the title in which section 2819 is found, are “in full force as to the rights of parties and to suits brought before justices.” The statute authorizing the issue of garnishments upon judgments is susceptible of application to suits before justices, and is not contradicted by any thing contained in the title which includes section 2819. We, therefore, regard that 'section as bestowing the same authority to issue garnishments after judgment upon justices of the peace, as is by section 2471 bestowed upon the circuit •court clerks. It follows, that there was no error in the refusal of the court below to treat the garnishment proceedings before the justice of the peace as void for want of jurisdiction. ' '

[2.] The justice of the peace, in return to the certiorari, sent up the affidavit made to procure the garnishment, the summons of the garnishee, with the endorsement of service upon it, the answer of the garnishee, and the'exeeution against the garnishee, with a statement of the judgment against him, and of the original judgment against the plaintiff’s'debtor. The papers in the original cause did not belong to the garnishment suit. The justice transmitted the papers and statement from his docket which give a complete history of the regular and accustomed proceedings in a garnishment case before a justice of the peace. — Faulks v. Heard & Due, 31 Ala. 516. It is true, there might have been other proceedings and other papers in the cause, which it was the justice’s duty to send up to the circuit court; but, if such was the case, it is not shown by the record, and we cannot presume it. The defendant excepted to the refusal of the court to award a certiorari, to compel the justice to certify all the proceedings before him, upon the ground that the papers filed did not constitute a sufficient return. It does not appear from the bill of exceptions, or other part of the record, that the return was incomplete; and we cannot hold that the court erred in refusing the certiorari. The motion for a certiorari had no reference to the justice^certificate, and we are not called upon to pronounce upon its sufficiency or insufficiency, as the appellant must be confined to the specific motion made by him. — Wolfe v. Parham, 18 Ala. 441.

[3.] The garnishee came in, and submitted to answer before the justice; making no objection, so far as we can learn, to the affidavit upon which the garnishment issued, or to the summons. A judgment was rendered against him by the justice, upon an admission of indebtedness; and he then, by certiorari, transferred the case to the circuit court.' After these proceedings, it was too late for hini: to object, either to the affidavit, or to the summons. — Marston v. Carr, 16 Ala. 325; Daniel v. Hopper, 6 Ala. 296; Smith v. Chapman, 6 Port. 365; Clough v. Johnson, 9 Ala. 425; Goss v. Davis, 21 Ala. 475 ; Couch v. Atkinson, 32 Ala. 633.

[4.] The garnishee cannot complain on error, that he was not permitted to answer anew in the circuit court; because he never appeared and offered to answer. — Case & Pate v. Moore, 21 Ala. 758 ; Colman v. Waters, 3 Porter, 381. Whether the circuit court ought to have continued the cause, in order that the defendant might, at a futuro term, appear and answer, was a question addressed to the discretion of the circuit court; and the decision upon it is not revisable.

[6.] The answer distinctly admits, that the garnishee would be indebted, on the 21st October, 1858, the day on which the justice’s judgment was rendered, in the sum of $52 78, to the defendant. There were two defendants in the original judgment; but there can be no doubt as to the defendant to whom the garnishee acknowledged an indebtedness, for that is clearly shown by a reference of the answer to the antecedent proceedings against the garnishee. The answer is, therefore, an admission of indebtedness at the date of the.judgment, for an amount exceeding that for which judgment was rendered against the garnishee ; and, by fair intendment, the indebtedness was to the defendant as whose debtor the garnishee was summoned. Such an answer fully justified the judgment reudered-upon it.

[6.] We know of no law which required the court to permit the filing of the petition for a certiorari as an answer to the garnishment. If such a practice were established, it would destroy the statutory right to have an oral answer. — Code, § 2540. The surety on the certiorari bond bad obviously no right to intervene and become an active party in the proceedings against the garnishee.

[7.] The judgment of the court belo.w against the garnishee is for too much; but the correction niight have been made in the circuit court, upon motion, and will be made here, at the costs of the appellant. The judgment of the court below must be reversed, and a judgment must be here rendered for fifty dollars, with interest from the date of the justice’s judgment against the garnishee, and the costs of the circuit court.