| Ala. | Jan 15, 1846
It is enacted by the attachment law of 1833, that “ when an officer shall serve an attachment in the hands of any person supposed to be indebted to, or have any of the effects of the defendant, he shall at the same time sum
The statute, it will be observed, does not require that a copy of the written summons, which he is directed to leave with the garnishee, shall be returned with the attachment. It is only the mode in which, in the language of the'act, the officer is directed to “ serve an attachment in the hands” of a third person, and when it is stated in the return that garnishments have been served on such persons, or that they have been summoned ,as garnishees, the inference is, that the duty has been performed according to law. See Burt v. Parish & Co. at this term.
It is required by the statute, in most unequivocal terms, that to authorize a final judgment against a garnishee, who continues in default, not only a conditional judgment should be entered against him, but a scire facias issued thereupon, should be executed and returned, or something equivalent should be shown. Here a conditional judgment has been rendered, but it does not appear from the record, that a scire facias has been served, or even issued. This is a fatal defect. See 9 Porter’s Rep. 163; 1 Ala. 48" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/dickerson-v-walker-6501218?utm_source=webapp" opinion_id="6501218">1 Ala. Rep. 48; 2 Ala. 73" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/jones-v-hart-6501400?utm_source=webapp" opinion_id="6501400">2 Ala. Rep. 73.
It is certainly essential to the regularity of a judgment against a garnishee, that it should appear the plaintiff had recovered a judgment against the defendant in the principal suit, (Blair v. Rhodes, 5 Ala. 648" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/blair-v-rhodes-6502062?utm_source=webapp" opinion_id="6502062">5 Ala. Rep. 648.) But if such a judgment is shown by the record, the garnishee cannot assign errors upon it — if the defendant does not object to its legal correctness, it will sustain the proceeding against the garni
For the error in the second point considered, the judgment of the County Court is reversed, and the cause remanded.