Randolph v. Peck & Co.

4 Ala. 389

• Court: Supreme Court of Alabama
• Decided: June 15, 1842
• Status: Published

Opinion

ORMOND, J.

This was a proceeding in the Court below commenced by the defendants in error, plaintiffs in a judgment against Thomas B. Archer, by process of garnishment against the plaintiff in error, upon which they obtained judgment against him by default, for failing to appear and answer, which was afterwards confirmed and final judgment rendered.

The-assignments of error present several grounds for reversal, but it is only necessary to examine one which is decisive of this case. The plaintiff in error was summoned as a garnishee, to appear within the first four days of the term of the County Court of Greene county, to be held on the fourth Monday in May, 1S39. The record shows that on the 29th of May, which was Wednesday, the third day of the term, a conditional judgment was rendered against the garnishee, for failing to appear and answer, which judgment was afterwards made final.

The statute, [Aik. Dig. 12, §19,] allows to the garnishee the first four days of the term to appear and answer, and upon his failing so to appear and answer, authorizes the rendition of a conditional judgment against him.. The judgment in this Case being rendered before the time had elapsed, within which the garnishee could appear and answer, is void, and for this error the judgment must be reversed and the cause remanded.