O'Brien v. Camden , 3 W. Va. 20 ( 1868 )

Brown, President.

The defendant Camden was summoned to appear on the 1st day of the circuit court of Lewis county and answer a suggestion under section 11, chapter 188, Code 1860.

The plaintiff making the suggestion moved for a rule under section Í3 of same chapter, upon the defendant Camden, to compel him to appear and answer, but the court overruled the motion and refused the rule upon the ground that the suggestion had not been docketed, nor had the summons on the suggestion been brought to the attention of the court on the day to which it was returnable, by reason whereof the same, in the opinion of the said circuit court, became discontinued.

It was the duty of the clerk to put the cáse on the docket, (Code 1860, chap. 177,) and his failure to discharge his duty should not prejudice either party. Neither ground assigned by the circuit court could work a discontinuance of the case.

The party summoned to answer a suggestion, like a defendant summoned to answer a bill, is advised by the suggestion what he is to answer, and when and where; and upon his failure to do so the suggestor is entitled to his rule to compel an answer.

The garnishee having been regularly summoned to answer the suggestion, and the summons having been served upon him more than twenty days and he failing to answer, the party requiring'his answer was entitled to a rule, under the 13th section of chapter 188 of the Code of 1860, to compel an answer.

I think, therefore, that the judgment refusing the rule should be reversed, with costs to the plaintiff in error, and the cause remanded to the circuit court of Lewis for further proceedings to be had therein, in conformity with the principles above indicated.

Judge Maxwell concurred.

Judgment reversed.