Opinion
1814.
No judgment can be given against a garnishee until a judgment has been first rendered against the defendant debtor.
Justices of the peace have no power to proceed by way of attachment by garnishment. [Changed by statute, Code 4173, 3479.]
[Cited in: 11 Lea, 583.]
Whiteside, for the plaintiff.
Cooke, for the defendant.
This was an action commenced by Murphy before a justice of the peace, by way of attachment, against one David Thomas, in which Seawell was summoned as a garnishee. Upon the summons being executed, Seawell appeared before the justice, whereupon the following judgment was given: —
"February 24th, 1808. The garnishee appeared and refused to be sworn according to law in such case made and provided for; therefore I give judgment for twelve dollars and sixteen cents, and costs, against the garnishee. Given under my hand the date above.
Thomes Williamson, J. P."
No judgment or further proceeding was had against Thomas.
Seawell removed the case, by certiorari, into the County Court, where the judgment of the justice was affirmed, in the following words: —
"The Court having heard and fully understood the matter of controversy between the plaintiff and the said Seawell, as garnishee of the said Thomas, do consider that the judgment of the aforesaid justice be confirmed, and that the plaintiff recover of the said Benjamin Seawell, the garnishee of the said Thomas, the sum," c.
From this judgment an appeal was taken by Seawell to the Circuit Court of Davidson County; and at the December term, 1812, it appears from the record that the parties appeared by their attorneys, "and on the motion of the said plaintiff, it is considered by the Court here that the judgment of the County Court be affirmed, and that the plaintiff recover against the said Benjamin Seawell, the sum," c.
A writ of error was thereupon obtained, and the cause thus brought into this Court.
We have looked into this record with some anxiety for something that would enable us to think with the three other tribunals who have decided this cause; but we can find nothing, and are constrained to believe that the law has been mistaken by the Circuit Court.
1. Because no judgment has been given against the original defendant, nor has there been any debt established against him. If this judgment is suffered to stand, Murphy may receive the money from Seawell when Thomas may not owe one cent.
2. The Act of 1794, 1 Hay. Rev. 194, furnishes the only authority which a justice of the peace has to proceed by way of attachment on a case within his jurisdiction. The fifty-sixth section requires that the attachment should be levied on property; but it gives no power to summon a garnishee. The twenty-second section, which authorizes the summoning of a garnishee, is confined to attachments in a court of record. We do not see how effect to the provisions of this section could be given by a justice of the peace. And as the attachment law points out a mode by which judgments may be recovered without personal notice to the defendant, we do not feel authorized to extend its provisions by construction.
Overton, J., concurred.