5 Ark. 700 | Ark. | 1844
By the court,
The principal question in this case^ whether a judgment debt is the subject of a garnishment under our statute, was decided by this court in Trowbridge vs. Means, at a former term. With the- decision in that case, we are entirely satisfied and fully concur. The reasoning of the court there applies more strongly in this case where the debt of the garnishee had noton. ly passed into judgment, but an execution upon it was levied upon his-property. This to a certain extent was a satisfaction of the judgment. While the levy continued upon the property and until the means of satisfaction under the execution was exhausted, the creditor could not proceed against the debtor, but must rely upon the property seized for satisfaction. Here there was nothing upon which the garnishment could operate. The property of the debtor was divested by the levy and vested in the sheriff in trust for the creditor. It was thus in cus-todia legis and beyond the reach of the garnisment.
The judgment was also for more than was warranted by the answer. There was no definite admission of an indebtedness to the amount for which judgment was rendered. While the answer remained in that shape, the, plaintiff could not take judgment for a larger amount than what was admitted to be due. If the answer was insufficient, indefinite or untrue, the plaintiffs should have excepted to the answer, or denied the truth of it. This he failed to do, and was therefore entitled only to such a judgment as it warranted.
It is contended that the objection should have been taken by exception at the trial, upon the authority of Cummins vs. Woodruff, 5 Ark. 116. The principle of that case proceeded upon the ground that by craving oyer of the bond, and thus making it a part of the declaration, the defendant could have demurred, and by pointing out the objection, would have enabled the plaintiff to have amended upon terms, and that by failing to do so, he admitted it to be read as evidence nothwithstanding the variance. The failure to demur, and suffering judgment to go by nil dicit, admits a cause of action as stated in the declaration. It is evident that the reason of the case does not apply here. As the plaintiff could not have demurred, he could not be entrapped by the silence of the defendant, but took.the judgment at his peril. Nor could the defendant demur in such a proceeding, and there was no necessity of excepting to the judgment where it appears upon the record that it was unwarranted.
Without noticing any other questions arising upon the record; we are clearly of the opinion that the judgment must be reversed. Judgment reversed.
