The appellant, having recovered a judgment against J. G. Thompson and F. C. Dunn in the circuit court of Etowah county, sued out process of garnishment on the judgment before the clerk оf the city court of Gadsden, returnable to the city court. At the hearing the city court dismissed thе garnishment suit. The question presented is, whether the clerk of the city court of Gadsden was authorized to issue the garnishment returnable to the city court.
Garnishment proceedings depend wholly upon authority conferred by statute, and must be commenced and prosecuted as therein provided. Section 2971 of the Code is as follows : ‘ ‘ Process of garnishment mаy issue on a judgment, or decree on which execution can issue without bond or security, аnd may be sued out by the assignee of such judgment or decree.” Clearly this section only prоvides for the issuance of garnishment process upon a judgment, but is entirely silent as to who shаll issue the summons in garnishment, and recourse must be had to the law as it existed prior to the adоption of this statute, and to other existing statutes regulating suits in garnishment. Section 2971 of the Code, supra, wаs substituted for section 3218 of the Code of 1876. Under section 3218 of the Code of 1876 the judgment creditor was required to make the necessary affidavit before the clerk of the court in which his judgment was recovered, and the clerk was the only officer author-.
The act of the legislature of December.9, 1886, supra, and section 3219, provide for the issue of garnishments where a summоns or summons and complaint have issued, and evidently refer to a garnishment in aid of a pending suit and before judgment has been rendered, and not to a garnishment upon a judgment. An examinаtion of this statute, and others authorizing garnishment in aid of a pending suit will show that no officer, othеr than an officer of the court in which the suit is brought, is authorized to issue the process of garnishment.
Sections 3218 and 3219 of the Code of 1876 together comprised section 2892 of the Code of 1867, and a reading of this section very clearly shows, that garnishment process upon ajudgment, or garnishment process, “when a summons or summons and complaint have issued,” could bе issued only by the clerk of the court in which the judgment was rendered, or the suit against the original dеbtor was brought; and this is also the law, where an attachment is executed by summoning a garnishee, unless specially otherwise provided. If the plaintiff had brought suit in the city court upon his judgment rеcovered in the circuit court, the garnishment would have been regular, but the attempt in thе case at bar is to
There is no question of estoppel in this case. The city court did not have jurisdiction of the subject matter.— Little v. Fitts,
Affirmed.