60 Ind. 202 | Ind. | 1877
Mary Matheney brought this complaint against Adams Earl and Charles Bangs, judgment creditors of Isaiah Matheney and James II. Greer, and Lawson E. McKinney, sheriff of Monroe county, to enjoin the collection of certain judgments rendered against her as garnishee.
The following facts are alleged in the complaint:
That, on the 30th day of July, 1874, Earl and Bangs obtained a judgment before a justice of the peace of Monroe county, against Isaiah Matheney, for the sum of seventy-eight dollars and ninety-five cents; and, on the same day, the same parties obtained a judgment in the same court, against Isaiah Matheney and James II. Greer, for the sum of fifty-two dollars and forty-one cents, and costs; that, on the 27th day of July, 1874, Earl and Bangs caused a summons to issue, notifying Mary Matheney to appear on the 25th day of said July to answer as
Prayer to set aside the judgments against her and enjoin their collection.
A demurrer to the complaint, alleging a want of facts to constitute a cause of action, was overruled, and exception reserved; and this ruling is assigned as error in this court.
If, according to the facts averred in this complaint, the judgments sought to be enjoined are void, the complaint
When, in an attachment proceeding, the only jurisdiction obtained is over the property attached, the basis of the jurisdiction is the attachment; and, if that is without legal authority, the proceedings under it will be coram non judice and void ; but, when jurisdiction is obtained by the service of process on the defendant, the attachment is not the foundation of the jurisdiction, but merely an ancillary remedy allowed to the plaintiff for the purpose of securing his demand; and in such a case, although the attachment may have been illegally issued, yet it is the privilege of the defendant alone to take advantage of it; and, if he waives such illegality, and the effects in the garnishee’s hands are subject to the payment of his debt, the sufficiency of the proceedings can not afterwards be questioned to protect the garnishee. If the court has jurisdiction over the defendant, and the garnishee wishes to question the jurisdiction over himself, he must do so in limine; for, if he answers, and judgment is rendered against him, he will be bound thereby, even on an appeal; and, for much stronger reasons, when he attacks the judgment collaterally. A negligent garnishee is no more entitled to protection than any other negligent party. And, when the jurisdiction has been established over both the defendant and the garnishee, the latter has no further right to interfere with, or enquire into, the proceedings in the main action between the plaintiff and defendant; for all that he is interested in is, that the attachment proceedings shall protect him against a second payment of the same debt; and this will be the case, although there
In the complaint in this ease, the validity of the judgments in the original actions is not questioned, either for want of jurisdiction over the subject-matter, or over the persons of the defendants; nor is the jurisdiction over the person of the garnishee, nor of the subject-matter as to her, questioned; but it is insisted, that, because there had been no attachment proceedings, and hence no property attached, the judgment against the garnishee is void for want of jurisdiction in attachment. When the justice obtained jurisdiction over the persons of the original defendants, and over the subject-matter, it became imma
It is needless to examine the subsequent proceedings, which resulted in a decree enjoining the collection .of the judgments in controversy, as they can not be upheld without a sufficient complaint to sustain them.
The judgment is reversed, at the costs of the appellee, and the cause is remanded, with directions to sustain the demurrer to the complaint, and for further proceedings.