24 La. Ann. 164 | La. | 1872
The only question in this case is whether or not the return by the sheriff of the fieri facias without retaining a copy thereof, after service .of garnishment process on garnishees, but before they had answered, is an abandonment of tho seizure by the plaintiff in ■execution, so as to relieve tlio garnishees from answering. The question must be answered in the negative. Article 246 C. P. directs that upon issuing u fieri facias a third person may be cited to answer interrogatories touching his indebtedness to or having in Ms possession any property of tho defendant, and lie is bound to answer in tho same manner and bo held liable in tho same manner for his neglect or refusal to answer, and Ills answers majr be disproved in the same manner ns those of garnishees; and the seizure shall be deemed to be as by the ¡sheriff from the date of the service of the interrogatories on such person.
It is necessary for the writ of fieri facias to lie in tho sheriff’s hands at tiie time of the service of the petition and interrogatories, but we .are not aware of any provision of the law which makes the duty and liability of the garnishee in such a case or tho force of tho seizure •depend on the retention of tho writ of fieri facias by the sheriff. Even iu the case of seizure of property iu the ordinary execution of adjudgment, tiie return of tho writ without retaining a copy does not release the seizure or impair the privilege, unless tho plaintiff or tho court •order the return. See It. S. § 3416.
.The seizure by garnishment proceedings can not be put in any harder condition, even if it be conceded that this provision of the law does not apply to the latter mode of proceeding. Tho judge a quo did not err in overruling the exception of the garnishees to answer, ¡and ordering them to pay.
We do not think this a caso for damages for delay; and besides appellee has asked an amendment of the judgment in her favor, and •she can not at the same time ho heard to ask for damages.
Judgment affirmed.
Rehearing refused.
