Walker v. Taylor , 1 Stew. & P. 298 ( 1832 )

Saffold, J.

The plaintiff in error having recovered of Morgan and Drumgoole a judgment for three hundred and twenty four dollars and thirty four cents in the County Court of Madison, at February term 1827 ; in January 1828, he, the said Walker, made affidavit before the Clerk of said Court, that neither of the defendants to said judgment had property, or effects subject to execution, and wherewith to satisfy the judgment so far as he had knowledge or information, except what Taylor, the defendant in error might owe Drumgoole; and that he had been informed, and believed, Taylor was so indebted in the sum of three hundred dollars, wherefore he prayed a summons pursuant to the statute, to compel Taylor to appear and answer as garnishee at the next term thereafter. The summons having issued in the usual form, a deputation appeared upon it in the name of J. P. Neal sheriff, constituting and appointing W. H. Bul-lington his lawful deputy, to execute and return the same. On the summons, the following return appeared, “ I do certify that I have executed the within writ, 23d January 1828, 'W. H. Buffington.” At the succeeding term of said Court, February 1828, Taylor the garnishee being present in Court, was called on by the plaintiff’s counsel to make a declaration of his indebtedness according to law, which he declined doing, whereupon said counsel moved for judgment ni. si. against him. On which occasion, as the record states, the attorneys of Drumgoole without stating whether they represented Drumgoole or Taylor, offered resistance against the motion for judgment ni. si. by objecting to the declaration being made by the garnishee, and asked and obtained leave to move to dismiss the summons. And as the record also states, “ it appearing to the Court that the deputation of Wm. H. Bullington made on the summons in the name of J. P. Neal, sheriff of the county, was in fact made by John M. Bowyer his deputy, who had a general power from said sheriff to make, in his name, such deputations, though no special power in the present instance, but that said sheriff did on the first day of the term recognise and approve the said deputation as his actand the Court being of opinion that the summons had not been legally served, on the garnishee, the same was dismissed at the plaintiff’s cost.

This judgment having been removed to the Circuit Court for revision by writ of error, the same was there affirmed — from -which judgment of affirmance the plaintiff Walker prayed and obtained an appeal to this Court, and here insists, that the Circuit Court erred in riot sustaining the assignments made on the record and proceedings had in the County Court, viz.

1. In refusing to examine the garnishee, Taylor, when he appeared in Court, in obedience to the summons.

2. In suffering the debtor, Drumgoole, to resist the judgment.

3. In refusing judgment ni. si. against the defendant.

The principal ground of objection is to the plaintiff's proceedings in the County Court, that on which the summons of garnishment was dismissed in the County Court, and on which the judgment was affirmed in the Circuit Court, was the supposed insufficiency of the service of the summons. The opinion.of the County. Court having sustained the objection, the consequence was a refusal by the Court to examine the garnishee, or to‘render judgment ni. si. against him. This opinion of the Court wras elicited by the motion of the counsel of Drumgoole, one of the original defendants, without professing to be the counsel of the garnishee. Hence it appears, that all the assignments of error depend on the validity of the exception to the service as stated. The argument of the counsel in this Court, was directed mainly to an investigation of the question, whether a deputy sheriff has power to constitute a deputy, or make any sub-appointment for the execution of a particular process.' On this question and on the authorities submitted, the Court is so far divided as to find some difficulty in arriving at a satisfactory conclusion; but we conceive the question not necessarily involved in the case. A deputation having been written on the summons, which purported authority in the name of J. P. Neal sheriff, to Buffington as his lawful deputy, to execute the particular process; in examining the sufficiency of the service, the attention is necessarily directed to the appointment, as well as the return — the latter may properly be viewed with reference to the former; and though Bullington has not signed his return expressly, as either general or special deputy, or annexed to his signature the name of Neal the sheriff, which on ordinary occasions is indispensably necessary, the omission to do so under the circumstances of this case leaves no doubt, or uncertainty as to the capacity in which he acted. The return and appointment, viewed in connection as they should be, shew- expressly in what character the deputy acted — that he executed the process as the deputy of Neal, the sheriff.

But this is not specifically the point mainly relied on: it is that Bullington had not been appointed by the sheriff personally, but in fact by Bowyer, who was himself a deputy, under a general power to make deputations in his name. It is true, the record states that this latter fact appeared to the County Court; but in what way is not shewn — Taylor, the garnishee, had made no appearance, and of course had filed no plea cither in abatement or otherwise. If the Court would sustain the motion of counsel, virtually, as amicus curien, it must be for some defect apparent on the face of the proceedings, which was not the situation of this case; nor was the Court authorised to take any notice of the extrinsic fact, unless advantage had been claimed of it, by plea, for and in behalf of the garnishee.

The affidavit of the plaintiff as granted by the clerk in vacation, and the summons of garnishment, returnable to the succeeding term, are believed to be fully authorised and sustained by the statute of 1823, ’24, cited in the brief.

We are therefore of opinion, that the judgment of the Circuit Court must be reversed, and the cause remanded, to the County Court, for further proceedings.

White, J. not sitlina-.