Thompson v. Allen , 4 Stew. & P. 184 ( 1833 )

Taylor, J.

The material points made in this case are—

1st. That the suit was discontinued before the judgment was rendered in the Circuit Court.

2d. That no issue was formed and submitted to the jury.

8d. That costs were adjudged against the garnishee.

4th. There was no such levy of the attachment, as to give jurisdiction of .the cause to the Circuit .Court.

5th. No declaration was filed against the original defendant.

gth. There .was error, in rendering judgment against the original defendani, upon the verdict of the jury against the garnishes.

The first point is not sustained by the record.—< The attachment, which was-issued by a justice of the peace, was returnable to the September term 1830, of the Circuit Court; at. that term the garnishee, Moses Thompson, appeared and answered, denying his indebtedness. The record proceeds immediately to state, that the plaintiff made the affidavit, which is inserted in it, that the defendant was indebted, &c., and to file his declaration or statement, averring-such indebtedness. It is true the transcript is made out, and put together in a most bungling manner, and without any regard to order; but after a careful examination, this appears to bo the correct understanding of it.

At the next term, a jury was impnrmeled, without .any response being made, by plea, to this statement-, who found, that the garnishee was indebted, &c.

The garnishee had answered, that he was not indebted; the plaintiff in Lis statement alleged that he was—-in the sum of one hundred and twenty-five dollars : what was necessary to form the issue? Nothing more than the simple denial of this statement by the garnishee. It is not more essential that such denial should appear in the record, than the similiter, after the general issue: therefore the second point can not be sustained.

'The statute -provides,^a “ that the garnishee shall be obliged to appear at the return of the attachment, and answer what shall- be objected against him, and abide the judgment of the Court; and shall be allowed out of the effects attached, reasonable satisfaction for his attendance.”

No provision is made in this statute, for contesting the answer of the garnishee; therefore, under its provisions, a judgment for costs against him, would not be authorised. But a subsequent act provides, that if a garnishee denies his indebtedness, the plaintiff may make affidavit, that he believes him to be indebted, whereupon an issue shall‘be formed, to try the fact: this act contains no provision with regard to costs.

If such an issue be formed, it is evident that the proceedings assume all the nature and formalities of a suit between the plaintiff and garnishee; and it would seem, that all the consequences of a suit, attend upon these proceedings. It is no longer a case in which the garnishee merely complies with the process of the Court, occupying more the character of a witness, than a party; but he is, to every intent, a party; and may summon witnesses, obtain continuances, &c., and swell the costs, as much as the original defendant could have done. If it is found, that in doing all this, he is endeavoring to avoid the payment of a just demand, is he to be rewarded for his iniquity, by recovering against the plaintiff, the costs which he has expended? The uniform practice throughout the State, has been, to render a judgment against him, in such case, for the costs which have accrued on the proceedings upon the garnishment; and this practice is sanctioned by the law.

It is contended, however, that the indebtedness of a garnishee, will not of itself give jurisdiction to the Court.

This position can not be sustained. The 'statute treats a levy upon property by attachment, as equivalent to the personal service of process,, and the summoning. of one indebted to the defendant, is the levy of the attachment upon property. True such indebtedness must exist, where no property is actually levied on, or the Court can not so far take jurisdiction, as to render a judgment against the defendant to the attachment; but it is immaterial at what time the indebtedness is ascertained, so that it existed when the process was served.

The two last points come directly within the decision in the case of Stebbins vs. Fitch.^a In that case, the Court said—“ the garnishee can not be permitted to take advantage of any irregularity in the proceedings between the parties to the attachment. There is a judgment against Bates” (the defendant to the attachment) which operates a complete discharge, as to the garnishee,” &c.

No disposition is felt to question, the authority of that case.

The judgment is affirmed.

a Aik. Dig. p. 43.

a 1 Stewart 180.