Clark v. Gaither

Supreme Court of Alabama

Clark v. Gaither

6 Ala. 139

DecidedJanuary 15, 1844

StatusPublished

This text of 6 Ala. 139 (Clark v. Gaither) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Gaither, 6 Ala. 139 (Ala. 1844).

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Opinion

GOLDTHWAITE, J.

So far as we can determine, from what appears in the transcript sent here, the sheriff seems to have considered the process of garnisheeing a debtor of the defendant in execution, as a necessary part of his duty; for the summons is issued by him, and does not apperr to be supported by any affidavit. This is entirely unwarranted by any statute, for although many enactments authorise garnishee process after judgment, or after the return of nulla bona to an execution, yet all require an affidavit to be made, and the writ of garnishment seems necessary to be issued by the clerk. [Clay’s Digest, 259.] The garnishee process then, is irregular, and this would be sufficient in itself to avoid the judgment, but in addition to this, there was neither service of the sci.fa. or the return of twonihils.

Let the judgment be reversed.

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GOLDTHWAITE, J.

So far as we can determine, from what appears in the transcript sent here, the sheriff seems to have considered the process of garnisheeing a debtor of the defendant in execution, as a necessary part of his duty; for the summons is issued by him, and does not apperr to be supported by any affidavit. This is entirely unwarranted by any statute, for although many enactments authorise garnishee process after judgment, or after the return of nulla bona to an execution, yet all require an affidavit to be made, and the writ of garnishment seems necessary to be issued by the clerk. [Clay’s Digest, 259.] The garnishee process then, is irregular, and this would be sufficient in itself to avoid the judgment, but in addition to this, there was neither service of the sci.fa. or the return of twonihils.

Let the judgment be reversed.

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Bluebook (online)

6 Ala. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-gaither-ala-1844.