Johnson v. Devens ( 1882 )

Campbell, C. J.,

delivered the opinion of the court.

Thisis aamotionby the appellee to have judgment entered for five per cent damages on the amount due the appellee from a garnishee who. was summoned in the attachment, which was dismissed by the Circuit Court, whose judgment was affirmed by this court. The garnishment was not the sort of restraining process meant by the clause in sect. 1422 of the Code of 1880, which provides : “If the judgment or decree be for the dissolution of an injunction or other restraining process, at law or in chancery, the damages shall be computed on the amount due the appellee, and which was enjoined or restrained.” This language contemplates a suit which has for its object the restraint of a sum due the appellee, and not a mere incident to the execution of process, as the levy of an attachment on property or the summoning of a garnishee. If the attachment had been levied on property of the appellee, he would not be entitled to damages on the value of the property, and the garnishment of his debtor affords no higher claim to damages than a levy on property would have.

Motion denied.