9 Ala. 211 | Ala. | 1846
1. Wejball consider this cause first, with reference to the supposed defects in the affidavit, bond and attachment; second, the objection that there is no summons in writing to the garnishee, and the supposed inconclusiveness of the sheriff’s return; third, the positions assumed with relation to the declaration; and lastly, that which is taken to the judgment itself, as prematurely rendered.
It will not be denied, the decisions of this court have undergone some modifications, so far as attachments are their subject. This mode of proceeding seems formerly to have been considered with so much strictness, that different rules were applied than obtained with more ordinary process; and judgments were not unfrequently reversed, although the exception to the proceedings had never.been taken in the court below. We have long been satisfied, the proper construction of the recent statutes, requires the party to avail himself of the objection, if one -exists, to the form of proceeding in the primary courts; and in accordance with this opinion, we
2. It is true, the statute (Dig. 59, § 19,) directs the sheriff to summon the garnishee, in writing, but we suppose the intendment must arise, that he has done so, when the return is, that he has summoned an individual as garnishee. In our judgment, no other conclusion is to be drawn from the sheriff ’s return, than that the writ was executed by summoning Mrs. Hill as garnishee — whether the summons was in writ-ting, or otherwise, is immaterial now to consider, as that seems to be an inquiry in which the garnishee alone is concerned. In analogous cases of sheriff’s returns, we have always held, that the return would be construed with reference to the mandate of the writ, and that it was unimportant to state the property levied on, as being the property of the defeudant. [Lucas v. Brooks, 6 Ala. R. 831; Bickerstaff v. Patterson, 8 Porter, 245; Kirksey v. Bates, 1 Ala. R. N. S. 303.] In our judgment, the return is sufficient.
3. The point next in order to be examined, might be disposed of quite briefly, if we were authorised to consider the assessment of damages as applicable to the common counts ; but it is insisted this can only be done when a verdict has been found on a material issue ; and therefore, without assenting to the proposition, we shall waive it, and examine the special count which is said to be defective. The defendant is not, technically a party to the note, which he assigned to the plaintiffs, inasmuch as it is payable to another person, and is not indorsed by the payee — a matter necessary, under our statutes, to the complete transfer of the note, although that is payable to bearer. According to the allegations of the pleader, it seems, the defendant, by his indorsement, assigned the note to the plaintiffs, and guaranteed the due payment of its amount, waiving the suit and diligence against the makers required by law. This contract, by the commercial law,
4. In this connection, horvever, it is also insisted, that an averment of notice to the defendant, of the non-payment, is necessary in the pleadings, even if the contract is considered as binding him to pay absolutely, upon the default; inasmuch as the fact of the default is more immediately within the knowledge of the plaintiff. This may be a very proper gen
5. It yet remains to consider whether the plaintiff was authorized to take a final judgment in the condition of the case, as presented by the record. Upon a first view, a majority of the court were inclined to sustain the judgment, upon the idea, that the judgment ni si against the garnishee, was equivalent, in legal effect, to her answer; but then, there was the difficulty which would arise if she, before this conditional judgment is made final, denies all indebtedness and shall be discharged. In that went, nothing equivalent to service of process would appear; and, of necessity, the judgment against the defendant would be set aside. On the other hand, the difficulty is to obtain a judgment against a garnishee who refuses to answer, when there has been no other service of the attachment to warrant a judgment against the debtor. A brief collation of our statutory provisions, with our decisions on this subject, will aid us in coming to the proper conclusion. The garnishee is required to answer within the four first days of the term to which the attachment is returnable. [Dig. 59, § 19.] And if he fails to appear and answer, then a conditional judgment may be entered against him, upon which a sci. fa. issues; and, if he remains in default after service and return, the conditional judgment is to be confirmed, and execution awarded against him, for the plaintiff’s 'whole debt and costs.- [Ib. § 20.] In Gaines v. Bierne, 3 Ala. Rep. 44, and Leigh v. Smith, 5 Ib. 583, we held, that no final judgment could be given against a garnishee until one was rendered against the debtor; but in neither of those cases was it the question, whether a conditional judgment
On this ground, the judgment of the County Court is reversed, and the cause remanded.