Corbyn v. Bollman , 4 Watts & Serg. 342 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

— 1. The judgment entered by the court below against the garnishee for not answering interrogatories which had been filed by the plaintiff, was erroneous. The Act of 13th of June 1836 authorizes the plaintiff to exhibit interrogatories in writing, touching the estate and effects of the defendant in his possession or charge, or debts due and owing from him, as the case may be, to the defendant, which the garnishee is to answer on pain of judgment against him. But the present interrogatories do not concern any estate or effects of the defendant in the hands of the garnishee, or debt due or owing to him by the garnishee. They merely inquire how many judgments were entered on his docket in favour of the defendant, and when they were entered, and how much each of them was for, with the names of the defendants, and there they stop. They are, therefore, irrelevant, and not such as the defendant was bound to answer. It is probable there has been some slip or inadvertence in the plaintiff in filing his interrogatories, but it is an essential matter, and such as disabled the court below from entering a judgment.

2. I do not see anything in the form of the scire facias that would render it void. It recites a judgment in the same court which remained unsatisfied, and this would be enough to show it was process of attachment in nature of execution. It is sufficient to meet the requisitions of the Act of Assembly that this substantially appears. There is, however, an objection taken here which has more force; that is to say, that the process was not served on the defendant in the original suit. The 36th section of the Act of the 16th of June 1836, relating to executions which gives this process, makes it the duty of the officer charged with the execution of the writ to serve a copy thereof on the defendant in the judgment in the manner provided for the service of a summons in a personal action, from and after which the property shall remain attached. And as no judgment can be rendered by default against a defendant on a summons without a service, it would seem the defendant here must be served in order to render the process effectual. At least such is the express provision of the Act, and it would be going further than we would be warranted, to say that a return of non est inventus would be equivalent to a service.

3. There is nothing in this objection. The judgment against a garnishee refusing or neglecting to answer interrogatories differs from that entered against him where he appears and pleads to issue, and is in this case right.

It may be proper to add that considerable doubt exists whether a justice of the peace, who has collected money on judgments rendered before him, can be made a garnishee. It has been decided that a prothonotary cannot be made a garnishee in respect of money which a party to a suit has paid into his hands on a rule of court, nor a sheriff in respect of money raised on a fieri facias. Ross v. Clarke, (1 Dall. 354). There seems to be a strong analogy between these cases and that of money collected by a magistrate.

Judgment reversed.