90 Mo. App. 639 | Mo. Ct. App. | 1901
Plaintiff obtained a judgment in the circuit court of the city of St. Louis, against the defendant, Prank E. Gottselig, for nearly seventeen hundred dollars, on the fourteenth day of February, 1900, on which judgment an execution was issued the fourth day of June, following, returnable the first Monday in December, thereafter. On
.Interrogatories were propounded on the fifth day of December, the same being the third day of the December term. The garnishee filed a motion to strike them from the files and to quash and dismiss the garnishment proceeding, on the ground that the summons to the garnishee was null and void because it was summoned to appear and answer at the second term after service of the writ, instead of the succeeding October term. The court below sustained said motion, dismissed the garnishment and discharged the garnishee. Plaintiff appealed.
The execution was an ordinary writ of -fieri facias, and was properly made returnable to the second succeeding term of said circuit court, which was to convene in December, if the plaintiff so directed. R. S. 1899, sec. 3154. The statutes provide that when a fieri facias is issued, it shall be the duty of the officer in whose hands it is placed, if directed by the plaintiff, his agent, or attorney, to summons garnishee and with like effect as in case of an original attachment; also, that the service of garnishment in such case and the subsequent proceedings, shall he the same as in garnishment under an aitachment. R. S. 1899, sec. 3434. These provisions relate to the manner in which service on the garnishee shall be had, the effect of it and the course of procedure to be thereafter followed in the proceedings against the garnishee, and can
We think, therefore, the learned circuit judge erred in