Crizer v. Gorren

41 Miss. 563 | Miss. | 1867

Ellett, J.,

delivered the opinion of the court.

(Jorren commenced a suit by attachment against Ella J. Yin-cent. The writ contained at the foot a direction to the officer to summon Orizer and wife as garnishees. The return was as follows: “ No property of the defendant, Ella Yincent, found in my county upon which to levy this' writ of attachment. Summoned as garnishees herein, Jacob Orizer and Maria, his wife, and also summoned the within-named defendant, Ella J. Yincent.” The writ was issued by a justice of the peace, returnable to the Circuit Court. The declaration was filed before the return day of the writ. At the return term judgment was taken by default against the defendant, and judgment was also entered against Orizer and wife as garnishees, for want of an answer.

The writ of error is prosecuted by the garnishees only.

The return of service of the writ on the original defendant, Yincent, was defective. In regard to attachments as to all other original process, the rules prescribed by articles 63 and 64, Rev. Code, 489, prevail, and the sheriff must show in what manner he executed the writ.

But this is not an error of which the garnishees can complain. It is a good judgment against the defendant, until reversed in a direct proceeding by her for that purpose, as the return purports to show a service upon her, and it is only the form of the return that is defective. It is regular in attachment cases to take judgments, on proper publication or notice, at the return term. It is so expressly provided in art. 150, Rev. Code, 503, and so is the whole tenor of the attachment act. The judgment cannot, therefore, be reversed as to the original defendant, or for any error to her prejudice merely.

But the return of service of process on the garnishees is also defective. It is as important to show in what manner they were summoned, as in what manner the writ was executed on the other parties. Ordinarily, no process issues against the garnishees except in proceedings after judgment, but the sheriff is required to summon as garnishees, all persons in whose hands he attaches money or effects of the defendant, to appear at the court to which the writ is returnable, there to answer on oath, &c. He is then to endorse “ a written statement of his proceedings ” on the writ. This requirement is not fulfilled by a mere return that he summoned as garnishees certain persons. He must show in what manner he summoned them, and that he summoned them to appear at the proper court to make answer as garnishees. Having no process in his hands against them, it becomes the more necessary that these facts should appear, in order that the court may have jurisdiction over them. 38 Miss. 97, ib. 544.

■ For the insufficient return in regard- to the garnishees the judgment against them will be reversed, and the cause remanded.