Robinson v. Starr

3 Stew. 90 | Ala. | 1830

By JUDGE SAFFOLD.

It is assigned for error that the Circuit Court ordered a dismissal of the garnishment against Starr, on the ground that the judgment nisi should have been taken against the garnishee at the first term. This was what is called a foreign attachment, in which all proceedings were directed to be stayed six months, and notice to be given to the defendant in the attachment, in the manner prescribed by statute. The same was accordingly ordered by the Circuit Court. But the objection is a judgment nisi was not taken against the garnishee a£ the return term, but at the second term, at which by order of stay and notice, the debtor in the attachment was required to appear and answer. The garnishee had an undoubted right under the garnishment to him, to have appeared at the first term and answered; no notice or agency from the plaintiffs in attachment being necessary to enable him to do so. Had he then answered and denied owing or having any thing, he would have been entitled to a discharge on motion to the Court; and such motion could properly have been made at his instance.

If however he stood indebted to the defendant in the attachment, or had effects of his in his hands, it was entirely indifferent whether he answered at the first or second term; had he done so at the first term, the plaintiffs could not have taken judgment against him, because then they had not established any debt against the defendant; and until they had, there was no authority for taking judgment against the garnishee. It does not appear whether the garnishee was indebted or not.

In as much then as the defendant had the liberty of answering at the first term, but chose not to avail himself of it, as his answer at that time would not have availed the plaintiffs any thing more than at the subsequent'term, as all proceedings were necessarily stayed against the defendant, and he is interested in the proceedings against the garnishee as his debtor, and as it would have been illegal to take judgment against the garnishee for any sum admitted to be due at the first term, the failure to take judgment nisi at that time could not operate as a discontinuance, as was adjudged by the Circuit Court. It may be assimilated to an ordinary suit, when;"the defendant fails to appear at the first term. If the session continues beyond the time allowed him to plead, the plaintiff is entitled to judgment by default, yet if he decline taking the judgment, then he has no less right to it at the next term, unless the default be. -cured. A majority are of opinion that the judgment be .reversed and the cause remanded.

Judgment reversed.

Lipscomb, Chief Justice, not sitting.