Lowry v. Clements

Supreme Court of Alabama

Lowry v. Clements

9 Ala. 422

CourtSupreme Court of Alabama

DecidedJanuary 15, 1846

StatusPublished

Cited by7 cases

This text of 9 Ala. 422 (Lowry v. Clements) 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

Lowry v. Clements, 9 Ala. 422 (Ala. 1846).

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Opinion

COLLIER, C. J.

It is enacted by the attachment law of 1833, that “ when an officer shall serve an attachment in the hands of any person supposed to be indebted to, or have any of the effects of the defendant, he shall at the same time sum[424]*424mon such person in writing, to appear and answer as a garnishee, &c. And where a garnishee shall be returned summoned in that manner, and shall fail to appear and answer, it shall be lawful to enter a conditional judgment against him, upon which a scire facias shall issue returnable to the next term, to show cause why final judgment should not be entered against him; “ and upon such scire facias being duly executed and returned, if such garnishee shall fail to appear according to the mandate thereof,” and answer upon oath, “the court shall confirm such judgment, and award execution for the plaintiff’s whole judgment and costs.” [Clay’sDig. 59, §§ 19, 20.]

The statute, it will be observed, does not require that a copy of the written summons, which he is directed to leave with the garnishee, shall be returned with the attachment. It is only the mode in which, in the language of the'act, the officer is directed to “ serve an attachment in the hands” of a third person, and when it is stated in the return that garnishments have been served on such persons, or that they have been summoned ,as garnishees, the inference is, that the duty has been performed according to law. See Burt v. Parish & Co. at this term.

It is required by the statute, in most unequivocal terms, that to authorize a final judgment against a garnishee, who continues in default, not only a conditional judgment should be entered against him, but a scire facias issued thereupon, should be executed and returned, or something equivalent should be shown. Here a conditional judgment has been rendered, but it does not appear from the record, that a scire facias has been served, or even issued. This is a fatal defect. See 9 Porter’s Rep. 163; 1 Ala. Rep. 48; 2 Ala. Rep. 73.

It is certainly essential to the regularity of a judgment against a garnishee, that it should appear the plaintiff had recovered a judgment against the defendant in the principal suit, (Blair v. Rhodes, 5 Ala. Rep. 648.) But if such a judgment is shown by the record, the garnishee cannot assign errors upon it — if the defendant does not object to its legal correctness, it will sustain the proceeding against the garni[425]*425shee. [Minor’s Rep. 129; 1 Stew. Rep. 180; 3 Stew. R. 326.]

For the error in the second point considered, the judgment of the County Court is reversed, and the cause remanded.

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COLLIER, C. J.

It is enacted by the attachment law of 1833, that “ when an officer shall serve an attachment in the hands of any person supposed to be indebted to, or have any of the effects of the defendant, he shall at the same time sum[424]*424mon such person in writing, to appear and answer as a garnishee, &c. And where a garnishee shall be returned summoned in that manner, and shall fail to appear and answer, it shall be lawful to enter a conditional judgment against him, upon which a scire facias shall issue returnable to the next term, to show cause why final judgment should not be entered against him; “ and upon such scire facias being duly executed and returned, if such garnishee shall fail to appear according to the mandate thereof,” and answer upon oath, “the court shall confirm such judgment, and award execution for the plaintiff’s whole judgment and costs.” [Clay’sDig. 59, §§ 19, 20.]

The statute, it will be observed, does not require that a copy of the written summons, which he is directed to leave with the garnishee, shall be returned with the attachment. It is only the mode in which, in the language of the'act, the officer is directed to “ serve an attachment in the hands” of a third person, and when it is stated in the return that garnishments have been served on such persons, or that they have been summoned ,as garnishees, the inference is, that the duty has been performed according to law. See Burt v. Parish & Co. at this term.

It is required by the statute, in most unequivocal terms, that to authorize a final judgment against a garnishee, who continues in default, not only a conditional judgment should be entered against him, but a scire facias issued thereupon, should be executed and returned, or something equivalent should be shown. Here a conditional judgment has been rendered, but it does not appear from the record, that a scire facias has been served, or even issued. This is a fatal defect. See 9 Porter’s Rep. 163; 1 Ala. Rep. 48; 2 Ala. Rep. 73.

It is certainly essential to the regularity of a judgment against a garnishee, that it should appear the plaintiff had recovered a judgment against the defendant in the principal suit, (Blair v. Rhodes, 5 Ala. Rep. 648.) But if such a judgment is shown by the record, the garnishee cannot assign errors upon it — if the defendant does not object to its legal correctness, it will sustain the proceeding against the garni[425]*425shee. [Minor’s Rep. 129; 1 Stew. Rep. 180; 3 Stew. R. 326.]

For the error in the second point considered, the judgment of the County Court is reversed, and the cause remanded.

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9 Ala. 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-v-clements-ala-1846.

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