Thompson v. Allen

1. In trying the question of the indebtedness of a garnishee, in attachment, no formal issue is required, farther than a denial of his indebtedness, and a response, averring it, by the plaintiff. 2. Where a garnishee in attachment denies his indebtedness, which denial is contradicted by oath of the plaintiff, and an issue is formed to try the question; the garnishee is liable for costs, if’the issue be found against him. 3. Under the attachment laws of this State, a levy of the attachment upon property, is equivalent to the personal service of process: and the summoning of a garnishee, (if indebted to the defendant in the attachment,) is, to this end, a levy upon property. 4. So, to give a Court jurisdiction of an attachment cause, it is sufficient, that the summons of garnishment has been executed upon one, indebted to the defendant, at the time of the service of process.

On the 27th day of April, 1830, Wade Allen, the defendant in error, obtained process of attachment, against the estate of John Thomjrson, returnable to the ensuing September term of the Circuit Court of Montgomery. The writ issued by the justice, was in the usual form prescribed by statute, and contained an indorsement, that the process was founded upon ten promissory notes, executed by the defendant, to one Slaughter or bearer. Upon the back of the writ was also indorsed the following words— “ Garnishee Moses Thompson, William Germany, Jesse Thompson W. C. Thompson, Solomon Thompson and it was returned by the sheriff, executed. At the September term of the Circuit Court, Moses Thompson, one of the garnishees, appeared and made oath that, he was neither, indebted to' the d<?-fendant in attachment, nor possessed of any of his goods, &e. And the said Allen made oath, also, that the said garnishee, Mesas Thompson, was indebted 'to the said John Thompson, at the time of the service of garnishment, in the sum of one hundred and twenty-five dollars. Then followed an averment of the said indebtedness, signed by the plaintiff’s counsel. No further proceedings appeared, from the record, to have been had, until March term, 183 [.when the following entry was made, to wit: — “ Wade Allen vs. John Thompson- This day came the said plaintiff, by his a,Henries, and fJunes Thompson, who was heretofore summoned as garnishee, and an issue being made up between the said plaintiff, and the said garnishee, according to tiro statute in such case made and provided; and whoroupon'eame a jury, to wit — ■ twelve good and lawful men, who, being elected, tried and sworn, upon their oaths do say, they find, that the said garnishee was indebted to the said John Thompson, at the time of the service of the said garnishment, in fine sum of eighty dollars and eighty-four cents; wherefore it; is considered by the Court, now here, that the said plaintiff recover of the defendant, John Thompson, the sum of eighty dollars and eighty-.four coats, for liis damages, in the declaration mentioned ; and liis costs, in that behalf expended — for which execution may issue. And it is further considered by the Court, that the said plaintiff recover of, and have execution against the said Moses Thompson, for the sum of eighty dob lars and eighty-four cents, and his costs, in and about the prosecution of the said issue expended. Moses Thompson, the garnishee, by a writ of error, removed the cause into this Court, and assigned, for reversal of the judgment, the following causes, to wit— First — That the cause was discontinued as to Moses Thompson, before the rendition of judgment against him. Secondly — That the case was tried as on issue, when none had been formed, and when Moses Thompson was not in Court. Thirdly — That judgment was rendered against the garnishee, for costs. Fourthly — That judgment was entered up against the garnishee, and the defendant in the attachment. Fifthly — That no declaration was filed in the case. For the plaintiff it was insisted— 1st. That there had been no summons of garnishment issued or served on the garnishees; and that, therefore, they were not in Court. The attachment, it was said, was a proceeding in rem, but, in this case, it had nothing to rest upon; no levy upon goods or chattels of the defendant, even to bring him into Court. How then could the Court exercise jurisdiction here, in respect to the garnishee. To bring a party, in proceedings of this nature, inio Court, there must be, so far as the defendant is concerned, at least a levy upon his goods — so far as the garnishee is affected, an answer admitting indebtedness. Here, there was neither. 2dly. Thai the cause was discontinued, as to Moses Thompson., the garnishee. He had been summoned, and, in compliance with it, had answered at the return term, as required by law. No default was made by him; but, at a succeeding term, without a continuance of the cause at the first, he is mulct into a judgment. And all without .any apparent benefit to any ohe, but the plaintiff, seemingly, to favor his own delay. Sdly. No declaration was filed in the cause; and yet a judgment is entered against both the defendant and the garnishee. Whether this defect could be reached by the garnishee, were the judgment against him alone, might be questioned ; but here the judgment being rendered jointly against both, gave all advantages on account of the irregularity. 4thly. That, under the statute, no costs could go against the garnishee. He may be presumed to make oath fairly and honestly: and the fact that the jury find against him, can not affect the truth of his oath. A verdict might be rendered a garnishee, on the oath of a perjured witness — if so, how could that fact affect the policy of the statute? The statute is explicit, and it could not have been contemplated, that, in any event, costs should be rendered against a garnishee. it was said, that no chasm appeared in the proceedings, and therefore no discontinuance resulted. The defendant was brought into Comí', by the levy of the attachment — rthat levy was upon money duo to him, by the garnishee.' The garnishee, having appeared, made a voluntary issue, by denial of his indebtedness — now, what was the proper course of the plaintiff? Why, as the law prescribed, to deny the foot, and leave' it to be determined by a jury. There was nothing- irregular in this, because it is the course required by the statute. The issue so formed, then, was ‘ found against the garnishee, and the only result must have been the judgment against him. As to costs — when the garnishee answers he is indebted, he is no party to the controversy; but, when he answers falsely, he makes upa suit between himself and the plaintiff; and the costs must, of course, follow, if he be found in dofanlt. In respect to the judgment against the defendant in the attachment, the garnishee can take no advantage. The regularity of it is' a matter, not in issue, as between his liability and the claim of the plaintiff. The only question for him to answer, is his indebtedness ; and that alone must bo tried.