There was a verdict for the movant, and the motion for new trial made by Pratt was overruled, to which he excepted. In addition to the grounds that the verdict was contrary to law, evidence, etc., it was alleged in the motion that the court erred in charging : “ The movant files his petition to set aside the judgment therein described, on two grounds : 1st, because the movant has never been served, with a summons of garnishment in the case of William H. Pratt versus Patrick Keating, defendant, and John J. Young et al., garnishees, set out and mentioned in his petition filed in this case. 2d, because if it were true, as appears from the return of the officer, that service had been made upon movant as there recited, the same would be illegal and of no effect, for the reason set out in movant’s petition. Counsel for movant at the close of the evidence in this case having stated that the question of service was abandoned, there remains but one question for you to try, and that is, was the summons of garnishment served on Young, legally issued and served, that is, was the service good in law; and further, was the judgment rendered against the movant, John J. Young, founded upon said service, valid and binding ? On this point I charge you, it was necessary in this case for an order to be taken withdrawing the garnishment affidavit and bond from the clerk’s office of the superior court, in order for the summons of garnishment to be legally issued and served; if that does not appear the service on Young is illegal and void. Officers are presumed to do their duty, but this is a presumption of law and may be rebutted by proof. I charge you further, that it was necessary for the justice of the peace to have had the affidavit and bond before him when he issued the summons of garnishment directed to Young, in the case of Pratt against Keating. If he did not have it before him at that time, he had no legal authority for issuing the summons of garnishment, and the judgment rendered on the service of the summons of garnisment thus issued by Thomas G-. Watters, the justice of the peace, against Young, the garnishee, is illegal and void. You will inquire whether the presumption of the law that Watters, justice of the peace, issued the summons of garnishment in the manner required by law, as it was his duty to do, is rebutted; and whether Carwile had the affidavit and bond with him when he served the summons on Young. If you find this legal presumption, that officers do their duty, is rebutted by proof, the form of your verdict will be, ‘Ve, the jury, find for the movant.’ If this presumption of law is not rebutted by proof, the form of your verdict should be, ‘We, the jury, find against the movant’.”Also, because during the trial of the case, after counsel for Young had abandoned the point of service of the summons, the whole case was res adjudícala, because service on Young was thus necessarily admitted, and therefore, having had his day in court, Young was concluded by the judgment against him; that judgment, whether right or wrong, was final, not excepted to, but acquiesced in by Young, and was a complete reply to his complaint as set out in his petition.Also, because a motion to vacate the judgment will not lie in the case as made by the petition, because the motion and petition are not based upon any defect not amendable, which appears on the face of the record or pleadings.Henry Walker, for plaintiff in error.C. N. Featherston, contra.
