Bryan v. Lashley

21 Miss. 284 | Miss. | 1850

Mr.' Chief Justice Sharkey

delivered the opinion of the court.

The plaintiff sued out an attachment against the defendant, on which was indorsed directions to the sheriff to summon certain persons as garnishees. No levy was made on property, but the sheriff made the following return, to wit, “ Garnisheed D. M. Mathews in presence of A. H. Jordon, March 2, 1849.”

On motion, the attachment was dismissed, because there was no such levy as to give the court jurisdiction. The correctness of this decision must depend upon the statutory requisitions.

It is made the duty of the sheriff to “ levy an attachment which may come to his hands, on the slaves, goods and chattels, lands and tenements of the absconding party,” or in the hands of any person indebted to, or having any effects of, the debtor, and to summon such person, as a garnishee, to appear at the court to which the attachment is returnable, there to answer, upon oath or affirmation, what he or she is indebted to the defendant in attachment, or what effects of such defendant he or she hath in his or her hands, or had at the time of serving such attachment, &c. If the attachment be returned “executed,” the court may compel the garnishee to answer. The section of the statute uses the word “summon,” as applicable to the garnishee, and the word “executed” as to the attachment; and the fourteenth section directs, that the officer, in executing attachments, shall go to the house or lands of the defendant, or to the person or house of the person in whose possession the property may be, and then declare, in the presence of one credible witness, that he attaches the rights and credits, money and effects, goods and chattels, lands and tenements of such defendant.

There was no levy on property; the debt seems to have been the only thing on which the attachment could operate. If the sheriff had returned “executed” generally, it would have been sufficient. Redus v. Wofford, 4 S. & M. 579. So if he had returned “ summoned” as to the garnishee. Has he not in effect done the same thing? To garnishee is to summon, or serve the attachment on the garnishee. It is in effect, also, to attach the debt. The general rule is, that an officer need not return how he has executed process; a general return will be deemed to imply that the process was executed according to law. If the officer undertake to make a special return, it must appear that the law was complied with, as it will not be intended that he did any thing but what is so stated in the return. The attachment law is to be construed liberally for the benefit of creditors, and we must, therefore, regard the return as sufficient.

Judgment reversed, and cause remanded.