Bridges v. North

By the Court.

Henning, J.

delivering the opinion.

Was the answer of the garnishees such as to authorize the Court to render a judgment against them ?

In order that a judgment may lawfully go against a garnishee, he must he “ indebted” to the debtor, or must have in his hands “ effects” of the debtor. Cobb’s Dig. 70.

And a Court is not authorized to say that the garnishee is a debtor to the debtor, or is the holder of effects of the debt- or, unless the garnishee admits that he is; or denies that he is, and it is proved on him that he is; or stands in contempt of a rule nisi to answer. Cobb’s Dig. 70, S3.

Did the garnishees in this case, admit that they were debtors to the debtor, or holders of effects belonging to him ?

They did not, unless saying that they had in their hands the estate of Travis Nichols, and that Thomas J. Nichols, the absent debtor, was one of the legatees of Travis Nichols, and therefore that they might or they might not have effects belonging to Thomas J. Nichols, was such an admission. Tliis was all they said, and in this they did not say what was the size of the legatee’s legacy, nor whether it had been assented to, nor whether there wore not debts enough against the testator, Travis Nichols, to consume his whole estate.

But if the legacy had not been assented to, or if the debts against the estate were sufficient to •consume the estate, the garnishees had no effects of the legatee in their hands, subject to garnishment.

What the garnishees did say then, was not an admission by them, that they had effects of the debtor in their hands.

In truth, the answer was defective. It wanted fullness. It should have contained matter enough to make it certain in law, whether the interest of the debtor in the estate was such as was or was not subject to garnishment. And it might have been excepted to, for such defectiveness.

But it did not contain what was equivalent to an admission, that the garnishees held elfects of the debtor that were subject to the garnishment. What it contained was rather equivalent to a denial of their having such effects ? Prima facie, the, interest of a legatee is not the subject of a garnishment issued against the executor. Serg. on Attach. 86. These garnishees were executors ; either executors by right, or by wrong.

The case obviously does not fall within either the second or the third class of the cases aforesaid, in which alone a Court is authorized to give judgment against the garnishee.

[1.] We think therefore, that the Court below erred in affirming the judgment of the Justice of the Peace.

[2.] We have no doubt that a garnishment may issue in a suit founded on a dormant judgment. Such a suit must stand on the same footing as other suits, the object of which is to recover a debt. Indeed the Act of 1834, authorizes plaintiffs to issue garnishments “ in all cases whatsoever,” “ whether the subject matter of the suit be a debt or not” Cobb’s Pig. 84.

And that there may be an action of debt on a dormant judgment, is decided by Lockwood vs. Barefield, 7 Ga. Rep. 393.

The other ground of objection to the judgment was not insisted on.

Judgment reversed.