Miller v. Wilson

86 Tenn. 495 | Tenn. | 1888

Lurton, J.

The appellant has appealed from a judgment rendered against him as garnishee. The transcript of the record from the Circuit Court contains a notice duly served upon Miller by a Constable, summoning liim to appear before a Justice of tbe Peace and answer as to bis indebtedness to one Tlietford. This notice recites tbat there was in the hands of the Constable giving the notice an unsatisfied execution in favor of "Wilson, and against Tlietford, and that Tlietford had no property out of which the execution could be satisfied. This notice is, in all respects, full and formal, and no objection is made thereto. The garnishee duly appeared, as required, and made answer in writing as to his indebtedness. Judgment was rendered against him by the Magistrate, and from such judgment he appealed to the Circuit Court. The bill of exceptions to the action of the Circuit Court contains an affidavit made by the garnishee seeking to amend his answer, and an order of the Court overruling the application to amend. Then follows this recital:

“ Whereupon the cause was heard upon the original papers in the case, which papers are as follows.”

Then follows the notice, the answer of the garnishee, the judgment of the Justice against the garnishee, and the appeal bond.; and the bill of exceptions concludes with the usual statement that “this was all the evidence in the ease.” ' The judgment of the Justice, one of the papers above referred to, contains a recital that it “ appeared that on the 11th of Eebruary, 1880, J. W. Wilson, executor of P. Wilson, for the use of John 0. Connor, recovered a judgment before 3?. Q-. Sampson, Justice of the Peace for Dyer County, Tennessee, against Isaac Thetford for $184.10 and cost of suit; and whereas, on the 27th of October, 1887, execution was issued thereon by W. N. Tucker, a Justice of the Peace for Dyer County, and cost, which execution has como to my hands in pursuance of § 3786 of the Code of Tennessee, and that Ji. fa. was issued by me, and returned by F. J. Bruff, C. Gr. 0., that there was no property of the defendant to be found upon which to levy this ji. fa., I therefore give judgment,” etc., etc.

These recitals show jurisdiction in the Justice; but do the same facts appear in such a way as to justify and sustain the judgment subsequently rendered by the Circuit Court? There is no transcript of the original judgment in favor of Wilson, and against Thetford, and there is no copy of either the execution from Dyer County, upon which a Gibson County Magistrate issued his execution, nor of the execution in the hands of the Constable at the time he summoned the garnishee to answer.

Can the proof of the existence of such a judgment be rested upon either the recitals in the notice or in the Justice’s judgment? We are of opinion that neither can be looked to for any such purpose. Such recitals are not evidence against the garnishee upon appeal to the Circuit Court. Pickler v. Rainey, 4 Heis., 335; Taylor v. Kain, 8 Bax., 35.

It is insisted, however, that tbe answer of the garnishee operates as a waiver of the necessity of such proof. The appearance and answer of a garnishee will undoubtedly operate to waive any objections to the notice or its service. But these objections go deeper. The jurisdiction to render a judgment against a garnishee depends upon a judgment against his creditor, an unsatisfied execution, and due notice by the officer having such execution. The answer contains no admission of any such judgment or execution, and it operated only to waive defects in the notice, or its service or issuance. The remedy given a creditor by garnishment is decidedly summary in character, and rests upon the statute. The jurisdictional facts necessary to authorize a judgment not appearing, it follows that the judgment is erroneous. For this defect we reverse the judgment, and dismiss the cause 'at the cost of the defendant in error. Pickler v. Rainey, 4 Heis., 335.