31 Ala. 516 | Ala. | 1858
— Tbe judgment against tbe garnishee is fatally defective. It does not recite tbe amount of tbe judgment against the defendant in attachment; and hence we cannot know that tbe appellees are entitled to tbe judgment for two hundred and seventy-six 62-100 dollars, which they recovered against the garnishee. Neither does the answer of the garnishee, or any other part of the record of the recovery against the garnishee, show the amount of the judgment against the defendant in attachment; and it follows, that we have nothing by which to amend the judgment against the garnishee. — Case & Pate v. Moore, 21 Ala. 758; Jackson v. Shipman, 28 Ala. 488; Travis v. Tartt, 8 Ala. 574; Cook v. Walthal, 20 Ala. 334. A certiorari to bring up the judgment against the defendant in attachment cannot help this record, as such judgment, if brought up, could not here be looked to or considered a part of the record, to sustain the judgment against the garnishee. — Gunn v. Howell, 27 Ala. 663, and authorities cited.
— I differ from my brethren, as to the necessity of reciting, in the entry of the judgment against the defendant in garnishment, the amount of the judgment against the defendant in attachment. In my opinion, the proceeding by garnishment, as the means of serving an attachment, although in some sense a distinct suit, belongs to and is a part of the record in the attachment suit. Such is the opinion indicated by this court, in Blair v. Rhodes, 5 Ala. 648. Such seems to be the necessary result of the decision, that this court would reverse a judgment in garnishment, because the record of the original attachment disclosed that the attachment was issued by one having no authority. — Flash, Hartwell & Co. v. Paul, Cook & Co., 29 Ala. 141. Such, too, seems to be the necessary result of those cases which hold, that the court will look to the evidence of indebtedness disclosed in the
Again; this court has decided, even in a case of garnishment issued after judgment, that the defendant in garnishment might move to quash the garnishment, upon the ground that the record in the orignal cause disclosed that the judgment was satisfied.-Thompson v. Wallace, 3 Ala. 132.
It is the opinion of the entire court, that the affidavit, preliminary to the contest of the correctness of the answer, is sufficient, upon the authority of the case of Foster, Nostrand & Co. v. Walker, 2 Ala. 177. It is agreed by all the members of the court, that it was competent for the plaintiffs’ attorney to make the affidavit.
The judgment is reversed, and the cause remanded.
