56 So. 845 | Ala. Ct. App. | 1911
Under our statutes a defendant in an action in which a writ of garnishment has issued has the option of bringing about the discharge of the money or property in the hands of the garnishee either by giving the bond provided for by section 4312 of the Code, “conditioned to pay the amount for which the garnishee may be found indebted or liable to the defendant, and the cost of the garnishment,” or by giving the bond provided for by section 4313 of the Code, “conditioned to pay such judgment as may be rendered or ascertained to exist in favor of the plaintiff and against the defendant in the cause, and costs of suit.” When the bond provided for by the first mentioned section is the one given, there is no dissolution and dismissal of the garnishment proceeding until the amount of the garnishee’s liability has been ascertained, and the
In the case at bar the defendants gave the bond provided for by section 4313 of the Code. That act-amounted to an admission by them of notice of the suit, and was as. effectual to subject them to a personal judgment in fiavor of the plaintiff as wo-uld have been a ser
After the defendants had so connected themselves with the suit by the execution of the bond, they, by attorneys professing to appear specially for them for the purposes of the motions, entered motions to dismiss the cause out of court, to strike it from the docket, and to dismiss the proceedings; the motions being based upon the absence of service of personal process upon the defendants, and upon the alleged invalidity of the garnishment proceedings.
The objection based upon the absence of service upon the defendants of a copy of the summons and complaint had been obviated by the appearance of the defendants in the suit by their execution of the bond above mentioned and procuring its approval and filing in the cause. As that act was by the court given the effect of having as completely eliminated the garnishment proceeding as if it had never been instituted, the question as to whether or not the garnishee had been liable not even being considered, the only judgment rendered in the cause being a personal judgment against the defendants and the surety on that bond, it sufficiently appears that, when the effort was made to bring that proceeding into question, it had already, at the instance of the defendants themselves, been finally disposed of and put out of the case, so that an inquiry as to its regularity or validity had ceased to be material. By the judgment appealed from, the plaintiff took nothing by virtue of the garnishment proceeding, and the defendants could not have been prejudiced by the rulings on the motions above mentioned so far as they related to. that proceeding. The defendants had appeared in the case and sub
The appellants could not have been prejudiced by the overruling of their objections to the proof of the service by publication of the notice of the writ of garnishment. In the personal judgment rendered nothing was adjudged in favor of the plaintiff by virtue of that service. That judgment is supported by defendants’ admission of notice of the suit, and is not at all dependent for support upon the proof of a service by publication of a writ of garnishment, which, at the time of the rendition of the judgment, had ceased to cut any figure in the case.
Affirmed.