Houston v. Walcott & Co.

If a judgment upon which a person has been garnished, be voidable only, and' not void, it is sufficient to protect the garnishee, and to this extent ha-should be limited in his examination of the proceedings on which such judgment is based. The failure of a justice to enter upon his docket a return of the execution on which a person has been garnished, before judgment is rendered against the garnishee, is not such an error as will entitle the garnishee to a reversal of' the judgment rendered against him. The third clause of section 2269 of the Code, which provides that the justice shall keep a docket in which he shall enter “the issuing of the process and. the return thereof,” is directory to the justice; and if he fails to obey its. directions, the proper remedy is against him, by compelling him,, under tha-proper process, to make such entry. Where a party appears and answers, or otherwise submits himself to the court, he gives the court jurisdiction of his person, and waives all errors in the process or notice by which he is required to appear. Where it does not appear from the record, that the error assigned has been, passed upon by the inferior tribunal, it will not be noticed in this court. Under section 1783 of the Code, which provides, that a judgment shall be rendered against the garnishee, unless he prefers paying to the sheriff the amount of his indebtedness to the defendant in the original suit, or delivering over to the officer the property in his hands belonging to such defendant, if the garnishee refuses or neglects to make his election, the judgment sjhould be rendered against him for a sum certain, and in money. Where the right to render a judgment against the garnishee, is not contested, but it is alleged that the judgment rendered is erroneous, as in requiring the garnishee to pay a sum certain, in goods, within a specific time, and in default thereof that the plaintiff recover the same sum in money, the error not being prejudicial to the rights of the garnishee, but for his benefit, the judgment will not be reversed at his instance.

Appeal from the Lee District Court. This cause is an appeal from tbe decision of tbe District Court of Lee county, on a writ of error to a justice of tbe peace, sued out by Houston, wbo was garnished at tbe suit of A. "Walcott & Co. against one Earner, on a judgment by confession against tbe latter. In tbe transcript of tbe justice, after tbe title of tbe cause, tbat officer states as follows: “This day came tbe defendant, Wm. H. Earner, and after filing bis affidavit confessing judgment in favor of A. Wal-cott & Co., for tbe amount filed as per account;” and tben follows a judgment for $92.47, in proper form. On tbe same day tbat judgment was rendered, 3d of March, 1854, an execution issued, on which Houston was garnished. He failed to appear at tbe time set to answer interrogatories, and tbe fact of default was entered by tbe justice in bis docket; but instead of entering judgment on tbe default, tbe justice entered an order, requiring Houston to show cause why judgment should not be rendered against him. On tbe 13th of March, tbe appellant, in answer to tbe rule, appeared, and was allowed to answer interrogatories as to bis indebtedness to Earner, on which answer, judgment was rendered as follows: “It is therefore ordered and adjudged by me, that the said GK M. Houston, pay to the said A. "Walcott & Co., the sum of $97.12, in goods in the store of G. M. Houston, within ten days from this date, and in default thereof the said Walcott & Co. recover of said Houston the said sum in money, and that execution may issue therefor.” In his affidavit for a writ of error from the District Court, Houston assigns error as follows : “ 1. The docket of said justice does not state the title of the case — statement of the nature and amount of plaintiff’s demand — or return of process, to wit: the execution in the hands of the court, upon which the proceedings in garnishment purport to be had, as the same should be, as required by law. “2. The said docket does not show what time the said Houston was notified or required to appear and answer said garnishment. “8. In not rendering judgment by default against the said Houston, defendant in garnishment, upon his making default. “ 4. In making an order that the said Houston be required to appear, and show cause why judgment should not be rendered against him, for the amount of the original judgment. “5. In rendering, or attempting to render, judgment against said Houston, as garnishee in said cause, upon ;such notice or citation as was given or made, pursuant to the order of said justice. “ 6. In attempting to render judgment at any other time than at-the time default was made. “ 7. In not notifying the defendant in said case, to appear and show cause why execution should not be issued against him. “ 8. In rendering up judgment in the alternative, instead of a sum certain and in money.” On the hearing of the writ of error, the District Court affirmed the decision of the justice, and rendered judgment against the garnishee for $97.71, with interest and -costs. Houston appeals, and alleges that the District Court erred: 1. In determining that tbe law does not require the justice to state on his docket the title of the case, the nature and amount of plaintiff’s demand, the date of the issuing of the execution, and return thereof, the date of the garnishee notice, and the time fixed thereby for the garnishee to appear before the justice, and answer the same. 2. In determining that the law does not require the justice to render judgment against the said garnishee, on the day on which he was required to appear and answer said garnishment, and that judgment might be rendered at any subsequent day, without a continuance of the cause. 8. In determining that the justice did not err in making the order that said garnishee appear and show cause why judgment should not be rendered against him, and in not entering the time on his docket, when said garnishee was required to show cause, &c. 4. In determining that the said justice did not err in rendering, or attempting to render, judgment against said garnishee, after the time fixed by said garnishee notice, and after default made by him, upon said order to show cause, made by said justice. 5. In determining that said justice did not err in rendering a judgment in the alternative, instead of for a sum certain, and the indebtedness of the garnishee. 6. In determining that there was no error in the proceedings of the justice. 7. In determining that the said justice did not err in rendering a judgment against said garnishee on the said answer. 8. The answer of the garnishee was not sufficient in law, to render a judgment thereon against the garnishee. 9. In rendering judgment against the said garnishee for the amount in money, when it appears that the amount was due and owing in goods. who cited, in support of the various points raised by the assignment of errors, the following authorities. Code, 810; Sears v. Tubbs, in this court, June T., 1854; Hodges v. Britt, lb., Code, 266 ; Kim-ble v. Biggin, 2 G. Greene, 245; Evans v. Bierce et at., 2 Scam. 468 ; 1 Doug. 890 ; Bigelow v. Stearns, 19 Johns. 39; Laws of 1852, 195; Code, 316; Wilson v.. Albright, 2 G. Greene, 125 ; David v. Ransom, 1 lb. 387 ; Shepard v. Merrill, 13 Johns. 475; Burtch v. Nickerson, 17 lb. 218; 1 Texas, 732; U. S. Dig. 1850, 190. cited; Code, §§ 2349, 2356 ; lb. §§ 1892,1869, 1873; Wright y. Marsh et at., 2 G. Greene, 94; Vorhies v. Bank United States, 10 Peters, 449; Code, 337.