Roberts v. Barry , 42 Miss. 260 ( 1868 )

Peyton, J.,

delivered the opinion of the court.

It appears from the record in this case, that on the 21st day of February, 1859, James M. Barry sued out a writ of attachment against the property of Bichard B. Boberts, returnable to the May Term next thereafter of the Circuit Court of Holmes county, and that on the 3d day of March, 1859, N. G. Nye was summoned as garnishee; that the plaintiff in the attachment filed his declaration in said court, to which the defendant pleaded the general issue.

And that at the November Term of said court, 1859, the following entry was made: “ This day came the parties by their attorneys, and it appearing to the satisfaction of the com-t that a garnishment having been issued against N. G. Nye, and retened duly executed, and the said garnishee • having filed his answer, and issue having been joined,” and submitted to a jury, who rendered a verdict for the plaintiff,, upon which judgment was rendered in favor of the defendant’ in error ¿gainst the plaintiffs in error. '

From which ’ judgment the plaintiffs in error, prosecute this writ of error, and make sundry assignments of error, of which it is deemed necessary to notice only the following: L That there is no answer of the garnishee in the record, nor traverse of- any such answer. 2. That there was no issue between the plaintiff in error, Nye, and the defendant in error. 3. That the issue between the plaintiff and' defendant in the attachment, and the alleged issue between the plaintiff and garnishee in attachment, were submitted to the -same jury at the’ same time. And, 4. That a general verdict -was found, and a joint judg^ ment was rendered against the plaintiffs in error. ’

The first and second assignments of error will be considered together; for if there was no answer of the garnishee, there could..be no issue joined between him and the plaintiff in the attachment.

The statute provides that when the plaintiff shall allege that the garnishee has not made a full and true discovery of the debt due by him to the defendant, or -of the property in his possession belonging to the defendant, he shall, at the term when the answer is -filed, unless the court shall grant further time, controvert the same in writing, specifying in what particulars he believes the answer to be incorrect. The court may direct a jury to be impanelled immediately, unless good cause be shown for a continuance, to inquire what is the true amount due from such garnishee to the defendant, and what goods or chattels are in his possession belonging to the defendant; and the court shall grant judgment upon the verdict of the jury, as if the facts found had been confessed by the garnishee in his answer. Kev. Code,- 380, art. 28’ This provision of the law evidently contemplates that the answer and the issue taken thereon shall be in writing, and’ constitute a part of ■ the record in the cause. The issue between the plaintiff and the defendant in attachment is the only one presented by the record, Which states that a jury-came to, try the issue joined, and found a verdict for tlie plaintiff; and in the absence of an answer and issue thereon in writing, as required by the statute, we must presume that the jury tried the only issue which, according to the record, was made up, and could properly be submitted to them. The judgment, therefore, upon the verdict could not properly be rendered against both the plaintiffs in error.

And even in case the issue between the plaintiff and defendant in the attachment, and the alleged issue between the plaintiff and garnishee, were submitted to the jury at the same time, a general verdict was wrong, and would not justify a joint judgment against the plaintiffs in error. The judgments in such cases should be separate and distinct, and the judgment against the defendant in the attachment should precede that against the garnishee.

The object of garnisheeing is to ascertain whether a party has funds or effects in his hands belonging to another, against whom the plaintiff either has or expects to get judgment, so that, after he has obtained judgment against his debtor, he may obtain judgment against the garnishee for the amount of his judgment against his debtor, or for as much as there may be funds in the hands of the garnishee due or belonging to the debtor.

Until the creditor has judgment against his debtor, he cannot have judgment against the garnishee. For the latter is not indebted to the creditor, but to his debtor. Rose v. Whaley, 14 Louisiana Annual Rep. 374; Housmans v. Heilburn, 23 Georgia, 186; Leigh v. Smith, 5 Ala. Rep. 583; Drake on Attachment, 306, § 460; Gaines v. Beirne, 3 Ala. Rep. 114.

There is no authority to render judgment against the garnishee upon his answer until judgment is obtained against the defendant in attachment; that being the only authority for condemning the money or effects in the hands of the garnishee.

For these reasons the judgment must be reversed, and the cause remanded.