Ezelle v. Simpson, 42 Miss. 515

Ezelle v. Simpson

42 Miss. 515 | Miss. | 1869

Shackelford, C. J.,

delivered the opinion of the court..

This was a suit commenced by the issuance of an attachment against William Ezelle in the Circuit Court of Lowndes county. Joseph W. Eield was summoned as garnishee.

*516Below the signature of the justice who issued the attachment writ, is the following statement:

“I suggest that Joseph W. Field is indebted to the defendant, or has effects of his in his hands or possession. — Feb. 11,1861.

“ Albert Simpson.”

And “ Garnishee, J. W. Field,” with no signature attached, showing whether it was an order of the justice, or Albert Simpson, the plaintiff.

The sheriff made and entered the following return upon the writ of attachment:

“ Executed on J. W. Field, as garnishee, and the defendant also. —Feb. 15,1861.”

A complaint was filed at the next term of the court against Ezelle; and at the April Term, 1866, a judgment, by default, was rendered against Ezelle, and the garnishee, J. W. Field.

The ease is brought into this court by writ of error to reverse these judgments.

There are two assignments of error, to the effect, that the judgments against Ezelle, the defendant in the attachment, and the garnishee, Field, are void, for want of proper service upon either party; and that, “in fact, no summons was ever issued against the garnishee.”

The execution of the process against the defendant, Ezelle, is clearly defective and insufficient.

The sheriff failed to show in -what manner he executed the order of summons in the* attachment writ; the return, “ Executed on the defendant also,” must have reference to the summons, as he did not attach his property, and if he had done so, he failed to show that he did so according to the requirements of art. 7, p. 371 of Rev. Code.

As an execution of the summons, it was not in accordance with art. 61 of Revised Code, p. 189. This court has held, that the manner pointed out in art. 61, for .the execution of process, applies to summons in attachment writs. Crizer & Wife v. Gorren, 11 Miss. p. 563.

The return of service on the garnishee, Field, is insufficient.

*517Wo process is required to Toe issued against a garnishee in this hind of case, but tbe sheriff is required, on suggestion that a party is indebted to tbe defendant in attachment, or has goods, effects, etc., in bis bands, to summon him as garnishee, to appear at tbe court to which tbe attachment is returnable, there to answer on oath what be is indebted to tbe defendant,’ in attachment, at tbe time of tbe service, etc., in accordance with art. 4, p. 373, Bevised Code.

Tbe sheriff failed to make bis return sufficient, in stating • “ Executed upon Joseph W. Eield, as garnishee,” having neglected to state tbe manner in which be executed tbe attachment and summons, required under art. 4, just referred to.

Such executions of process as in tbe case before us this court has repeatedly held to be insufficient. Jeffries v. Harvie, 38 Miss.; Alexander Roy, garnishee, etc., v. Heard & Simmons, ib. 544; and Crizer et ux. v. Gorren, 41 Miss. p. 563.

For the insufficient returns in this case, the judgment against tbe plaintiff in, error, Ezelle, and tbe garnishee, Field, must be reversed, and tbe cause remanded for further proceedings.