Mercer v. Booby

Supreme Court of Florida

Mercer v. Booby

6 Fla. 723

CourtSupreme Court of Florida

DecidedMarch 15, 1856

StatusPublished

Cited by4 cases

This text of 6 Fla. 723 (Mercer v. Booby) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mercer v. Booby, 6 Fla. 723 (Fla. 1856).

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Opinion

DU TONT, J.,

delivered the opinion of the Court.

The appellant John Mercer was summoned by a writ of garnishment, to answer and set forth what goods and chat-ties, rights and credits, money or effects were in his possession or control, belonging to Philip S. Lever, the plaintiff in execution. The indorsement on the writ is as follows : “ Served—-July 25th, 1854—E. T. Kendrick, Sheriff.” The record shows that at the fall term, 1854, the parties appeared by their attorneys and that a judgment was entered against the garnishee for the want oí a plea or answer.

The error assigned is that the endorsement on the writ [724]*724does not show how the service was perfected, whether by delivery of a copy or otherwise.

The statute (vide Thompson’s Digest, 372,) provides that the service of the writ of garnishment shall he the same as is provided in the case of a summons ad respondendum, and it has been heretofore decided by this court that the appearamce of a defendant in a suit cures any defect in the service of the writ. (D. B. Wood & Co. vs. Bk. of the State of Geo., 1 Fla. Rep., 378.) We can perceive no good reason why the same rule should not he applicable to the service of writs of garnishment.

Therefore let the judgment of the Circuit Court he affirmed.

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DU TONT, J.,

delivered the opinion of the Court.

The appellant John Mercer was summoned by a writ of garnishment, to answer and set forth what goods and chat-ties, rights and credits, money or effects were in his possession or control, belonging to Philip S. Lever, the plaintiff in execution. The indorsement on the writ is as follows : “ Served—-July 25th, 1854—E. T. Kendrick, Sheriff.” The record shows that at the fall term, 1854, the parties appeared by their attorneys and that a judgment was entered against the garnishee for the want oí a plea or answer.

The error assigned is that the endorsement on the writ [724]*724does not show how the service was perfected, whether by delivery of a copy or otherwise.

The statute (vide Thompson’s Digest, 372,) provides that the service of the writ of garnishment shall he the same as is provided in the case of a summons ad respondendum, and it has been heretofore decided by this court that the appearamce of a defendant in a suit cures any defect in the service of the writ. (D. B. Wood & Co. vs. Bk. of the State of Geo., 1 Fla. Rep., 378.) We can perceive no good reason why the same rule should not he applicable to the service of writs of garnishment.

Therefore let the judgment of the Circuit Court he affirmed.

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Bluebook (online)

6 Fla. 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-v-booby-fla-1856.

Opinion

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