Roy v. Heard & Simmons

38 Miss. 544

• Court: Mississippi Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinion

HARRIS, J.,

delivered the opinion of the court.

The main point of error relied on in this case is, that the judgment of the court below, against the garnishee, under the facts before us, should have been for the plaintiff in error.

The only service of process appearing in the record, is the return of “executed.” This we have held, in several cases, is no service upon which the court can render judgment. It imposed no duty or liability upon the plaintiff in error.

At the te;rm of the court it appears that plaintiff in error appeared and answered, denying all indebtedness at that timei but not denying, in the language of the act, indebtedness at the time of the service of garnishment upon him.

As no service had been made in law, of the process, existing against him, the appearance of the party in court must be regarded as a waiver of such service of process. And his answer being filed in the same moment, and being indeed itself the waiver, it is a full compliance with the statute to deny, in such answer, present indebtedness, &c.

Let the judgment be reversed and cause remanded.