Opinion
(August Term, 1848.)
A justice of the peace before whom an attachment is returnable has no right to refer the papers to the County Court, unless it appears that the plaintiff made oath before him that the garnishees owed to the defendant some debt, or had property of his in their possession, or that they made such a statement of facts that the justice could not proceed to give judgment thereon. The process returned to the County Court. without some of these matters being certified by the justice, should be dismissed.
APPEAL from the Superior Court of Law of HENDERSON, at June Term, 1846, Battle, J., presiding.
Francis for plaintiff.
Baxter for defendant.
The plaintiff sued out an attachment against the defendant returnable before a single justice, and caused several persons, among whom was George Clayton, to be summoned as garnishees. They accordingly appeared before the justice, who, after examining them upon oath, made the following endorsement upon the attachment: "On examination of the within (478) attachment before me, Lincoln Fulton, an acting justice of the peace for the county of Henderson, the plaintiff and garnishees being present and having been examined on the garnishment on their oath duly administered, and declaring thereon that the plaintiff in this attachment can have no claims whatever upon any amount in their hands due James J. Bates, and I from examination rendered judgment against the plaintiff for costs, took his affidavit according to law, and transmit the same, together with the original attachment and all the papers thereto annexed, to the Court of Pleas and Quarter Sessions for Henderson County, that due justice therein may be rendered according to law. I have directed the officer to notify the parties that the same will be returned to the next County Court." There was also an endorsement by the justice of his judgment against the plaintiff for costs, though he "found the debt of the plaintiff to be just for the sum of about $50." And another endorsement of a levy of the sheriff in these words, "Levied this attachment on James J. Bates' interest in one lot in Hendersonville and improvements, the lot on which George Clayton now lives, at the suit of Thomas R. Miller."
The attachment, with the proceedings thereon and other papers, were returned to the next County Court, from which they were transferred by virtue of the act of 1844, ch. 12, to the Superior Court, and, at the Special Term thereof in June, 1846, they were dismissed, upon the motion of the counsel for the garnishees, and the plaintiff appealed.
We cannot see how the court below could have done otherwise than dismiss the attachment as having been improperly returned by the justice of the County Court. The "act authorizing attachments to issue for the recovery (479) of debts, and directing the proceedings thereon," 1 Rev. St., ch. 6, prescribes, in section 14, the mode of proceeding against garnishees in attachments returnable before a single justice. Among other provisions, it declares that "when any garnishee shall on his or her garnishment deny that he or she has in his or her possession any property of the defendant, and the plaintiff in such attachment shall on affidavit suggest to the justice that such garnishee owes to or has property in his or her hands belonging to the defendant, or when any garnishee shall on his or her garnishment make such a statement of facts that the justice before whom such garnishment shall be made cannot proceed to give judgment thereon, then, in either of these cases, the justice shall return the attachment and other papers to the next County Court to be held for his county, and the court shall order an issue or issues to be made up and tried by a jury, and the court shall give judgment on the verdict of the jury as in other cases." Now, in the case before us it does not appear that the plaintiff suggested on oath either of the things which authorized the justice to return the proceedings to the County Court. The justice says merely that he "took the plaintiff's affidavit according to law," but he does not state that the plaintiff swore that the garnishees owed to the defendant any debt, or had any property of his in their hands or that they made such a statement of facts that the justice could not proceed to give judgment thereon. He, therefore, apparently, had no authority to return the attachment and accompanying papers to the County Court, and the garnishees had the right to have the proceedings dismissed as to them; particularly as it does not appear that the plaintiff, after the attachment and papers were returned to court, ever moved to have an issue made up to try the question of their indebtedness to the defendant or of their having any property belonging to him in their hands. Nor could the (480) attachment be sustained before the court by virtue of the levy on the land of the defendant in the possession of George Clayton. It does not appear that the lot was shown, or offered to be shown, by the plaintiff to belong to the defendant; but if that had been done, the justice did not condemn the same for the satisfaction of the plaintiff's debt, as he was required by section 20 of the before-recited act to have done before he returned the attachment to the County Court. Therefore, neither the County Court nor the Superior Court, to which the cause was transferred, had jurisdiction of it, and the latter court did right in dismissing it.
PER CURIAM. Judgment affirmed.