Chambers v. Yarnell , 37 Ala. 400 ( 1861 )

STONE, J.

The judgment in this case-cannot be supported, because it fails to recite the fact and amount of the recovery against the defendant in execution. Nothing in this record, except the ex-parte affidavit-of the attorney on which the garnishee process was sued out, shows that the plaintiff has a judgment against the elder Leonard. The record does not show enough to.justify the judgment against the garnishee. — Faulks v. Heard & Due, 31 Ala. 516.

[2.] The judgment against -the garnishee, for the coste of the collateral issue between -the plaintiff and the alleged transferree, is also erroneous. The garnishee was not a party to that issue. The-'transferree, when brought in, was the party contesting with the plaintiff in garnishment. Hence, if he set up a claim to the debt, and failed to make it good, he was the unsuccessful party against whom judgment for costs should have been rendered. — Code, § 2554.

Judgment reversed, and cause remanded.