Alexander v. Lloyd

Cooper, J.,

delivered the opinion of the court.

The service of the writ of garnishment was. not made five days before the return-day, and, for that reason, could not support a judgment at the return-term. Section 2134, code 1892, provides that writs of garnishment “shall be served as a summons is required by law to be executed.” Section 3417 provides that summons “ shall be executed five days before the return-day thereof; and if executed within five days before the return-day, it shall be good to require the appearance of the party at the term next after that to which it is returnable.” Section 3427 declares in what ways the service shall be made. The purpose of § 2134 is to place writs of garnishment under all the rules applicable to other original process.

"Where there has not been personal service upon the garnishee, no final judgment can be rendered against him, but a judgment nisi must be taken, with scire facias returnable to the next term, “unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter.” Code 1892, § 2134. It is the scire facias, and not the original writ, to which this clause refers.

■ Judgment affirmed.