Edwards v. Kingston Lumber Co.

1. Justice or the Peace. Bokling two courts. Different places. Q-arnislwtvent. Proper return. Where a justice of the peace, as authorized by statute, holds two courts each month, but for convenience holds them at different places, a writ of garnishment issued on a judgment is properly returnable to the .nest court to be held at the place where the judgment was rendered, and need not be made returnable to an intervening court to be held by the justice of the peace at the distant place. 2. Supreme Court Practice. Remand of cause. Where the trial court, pretermitting one of. two questions involved in a ease, erroneously decided the other, the supreme court in reversing the judgment will not finally adjudicate the rights of the parties but will remand the cause for further action by the trial court.

Erom the chancery court of Jones county. Hon. James L. McCaskill, Chancellor. The lumber company, appellee, was complainant in the court Delow; Edwards, appellant, was defendant there. Erom a decree in complainant’s favor the defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. The appellant, Edwards, brought a suit in a justice’s court of Jones county and obtained a judgment against one Johnson. This judgment against Johnson was obtained on the 21st of January, 1905, in the justice’s court held at Laurel, and on the 26th day of January, 1905, the justice of the peace issued a writ of garnishment on said judgment, and same was duly served on the Kingston Lumber Company, returnable to his said court at Laurel on the 18th day of Eebruary, 1905. The Kingston Lumber Company, garnishee,, failing to answer, judgment was taken against it, and the garnishee sued out an injunction, upon the ground that it had no notice, and later filed an amendment to its bill setting up the fact that the writ of garnishment was void because not made returnable to the nest succeeding term of said justice’s court after the 26th day of January, 1905. At the time this judgment was obtained the said justice held a court at Laurel, where the judgment was obtained, for civil business, and also held a court at a place called Gitano in the same beat for civil business, that is he held two courts per month in his beat; one at Laurel and one at Gitano. Gitano is eighteen miles from Laurel. The judgment in this case, however, was taken in the Laurel court and the writ of garnishment was so returnable. By examining the record in answer to the garnishee’s amended bill it will be seen that the appellant states just how the courts were held. The chancellor decided against the appellant, and he appeals to this court, and there are only two questions presented for determination. One is, did the garnishee have notice, and the other is, was the writ of garnishment void because not made returnable to the Gitano court, which intervened between the Laurel court to which the writ was returnable on the 18th day of Eebruary, '1905, bearing-in mind at the same time that the judgment was obtained at the Laurel court? We do not think the testimony sufficient in this case to overthrow the return of the officer showing service of the writ. In order to overthrow the return of an officer there must be positive proof of corroborating circumstances, and we think the proof in this case falls far short of measuring up to this rule. As to the other point we think the writ was properly returnable to the court where the judgment was obtained. The judgment having been obtained at the Laurel court, of course all parties interested in the matter would go to the Laurel court to see about that particular case, and we think that if a judgment was obtained in the court at Laurel, then the writ should be returnable to the court in which the judgment was' obtained, notwithstanding there might be an intervening court held.eighteen miles in the country. A writ of garnishment, so far as the garnishee is concerned, is original process. In other words, it is the same as a summons. A summons issued by a justice of the peace must be made returnable to the first term of his court to be held more than five days after it is issued Code 1892, § 2101. The writ of garnishment in this case was issued on the 26th day of January and the officer’s return shows that it was served on the 27th and made returnable on February 23. This of course was more than five days; hence, the writ should have been made returnable on the 3rd day of February instead of the 18th day of February. Counsel say that the intervening term of court was held at Gitano, eighteen miles from Laurel, but even if this be true, it was in the same justice’s district, and so far as the law is concerned was one and the same court. It is by no means admitted that the writ of garnishment was served upon the appellee, but the testimony on this point being in conflict and the chancellor having decided the case on the other point, we see no particular reason to lay stress on the disputed testimony.