65 Miss. 6 | Miss. | 1887
delivered the opinion of the court.
The suggestion in the writ as to the indebtedness of appellant, was sufficient to authorize and require him to be summoned as garnishee. On this suggestion being made by the attaching creditors, it was the duty of the clerk issuing the writ to insert therein a command to the officer to whom the writ was directed, to summon appellant as garnishee. Code, § 2422. But the failure of the clerk to perform this duty, did not defeat the right of the attaching creditors based on their suggestion of indebtedness by appellant, to have him garnished. It was the duty of the sheriff, under § 2423 of the Code, to summon appellant as garnishee on the suggestion made, whether commanded to do so in the writ or not.
The return of the sheriff on the writ, as to appellant, is irregular, defective, and insufficient to warrant judgment by default. It conforms to neither of the modes prescribed by statute for the service 'of process in proceedings by garnishment. It contains too much for the general return, and not enough for the special return prescribed by the statute in such case. If the return had been general
Reversed and remanded.
