Dew v. Bank of the State

Supreme Court of Alabama

Dew v. Bank of the State

9 Ala. 323

CourtSupreme Court of Alabama

DecidedJanuary 15, 1846

StatusPublished

Cited by5 cases

This text of 9 Ala. 323 (Dew v. Bank of the State) 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

Dew v. Bank of the State, 9 Ala. 323 (Ala. 1846).

Pincite

Opinion

COLLIER, C. J.

In Caldwell v. Meador, 4 Ala. R. 755, it was decided that a justice-of the peace has no authority, in virtue of our statutes, to issue an attachment returnable into the County or Circuit Court of any other county than that for which he is elected. That case was reaffirmed in Brooks & Lucas v. Goodwin, at the last term, where it was added, that although the irregularity was not insisted on in the primary court, it was available on error.

Loomis v. Allen, cited for the defendant in error, is unlike the present case in every respect. There was no controversy in that case as to the authority of the officer who issued the attachment, but the question was as to the sufficiency of the affidavit; and it was said, the objection should have been taken by plea in abatement, and was not available after judgment by default.

The attachment being void, it necessarily follows, that the garnishment, which is merely consequential, must fall with it.

But if the attachment was issued by a competent authority, the judgment against the garnishee would be erroneous, because it does not appear that he was served with a scire facias. Lowry et al. v. Clements, at this term, is conclusive upon this point.

The judgment of the Circuit Court is reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

COLLIER, C. J.

In Caldwell v. Meador, 4 Ala. R. 755, it was decided that a justice-of the peace has no authority, in virtue of our statutes, to issue an attachment returnable into the County or Circuit Court of any other county than that for which he is elected. That case was reaffirmed in Brooks & Lucas v. Goodwin, at the last term, where it was added, that although the irregularity was not insisted on in the primary court, it was available on error.

Loomis v. Allen, cited for the defendant in error, is unlike the present case in every respect. There was no controversy in that case as to the authority of the officer who issued the attachment, but the question was as to the sufficiency of the affidavit; and it was said, the objection should have been taken by plea in abatement, and was not available after judgment by default.

The attachment being void, it necessarily follows, that the garnishment, which is merely consequential, must fall with it.

But if the attachment was issued by a competent authority, the judgment against the garnishee would be erroneous, because it does not appear that he was served with a scire facias. Lowry et al. v. Clements, at this term, is conclusive upon this point.

The judgment of the Circuit Court is reversed.

Cite This Page — Counsel Stack

Bluebook (online)

9 Ala. 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dew-v-bank-of-the-state-ala-1846.

Opinion

Related

Cite This Page — Counsel Stack