131 Ill. App. 357 | Ill. App. Ct. | 1907
delivered the opinion of the court.
The only question necessary to be decided in this case is, whether the appellant, the Wabash Railroad Company, was or was not guilty of negligence in not appealing within the time fixed by the statute. It appears affirmatively from appellant’s petition that' it was served with process as garnishee, and filed its answer containing averments as shown in the statement preceding this opinion. It seeks to excuse itself from taking further notice of the cause, after filing its answer, because of the fact that the scire facias was not served on it, and because it supposed that its answer, which was not on oath, would be taken as true, and that it would be discharged as'garnishee.
The object of scire facias against a garnishee, is to bring the garnishee into court, that he or it, as the case may be, may make discovery and be examined as to the personal estate, moneys, etc., of the judgment debtor in his or its possession. If, however, the garnishee without service of the scire facias answers, he is in court, and the object of the scire facias is satisfied.
“The appearance is as good as a personal-service.” Palmer v. Logan, 3 Scam. 56.
In Abbott v. Semple, 25 Ill. 91, the court say:
“We have often said, service of process is unnecessary if the party appears, appearance being the object of process. When that is effected without service, as by a regular entry of appearance, -in person or by attorney, the law is satisfied.”
Appellant, being in court by its answer, was bound to take notice, at its peril, of all proceedings in the cause subsequent to its appearance. That it supposed its answer would be taken as. true, and that no issue would be taken on it, is a rather flimsy excuse. Section 8 of the garnishment act provides: “If such garnishee shall appear and answer, the same proceedings may'be had as in other cases,” Hurd’s Rev. Stat. 1905, p. 1011; and, by section 3 of article 9 of the act in regard to justices arid constables, it is provided that the garnishee may be examined orally, and although the appellant corporation could not thus be examined, its officers might be.
The plaintiff in the principal judgment had the right to dispute the truth of appellant’s answer, and appellant must be presumed to have known this, and it does not appear from the petition that the truth of the answer was not disputed.
It is unnecessary to inquire as to the validity of the judgment of the justice, because even though invalid, the remedy is only by appeal or certiorari, and in either case there would have to be a trial de novo. The invalidity alone of a justice’s judgment is not ground for the issuing of a writ of certiorari.
Had appellant been diligent in looking after its interest in the justice’s court, it would have known of the judgment in ample time to appeal, and that it did not know, as it avers, was owing to its. own neglect.
The judgment will be affirmed.
Affirmed.
