Culbertson v. Ellison

Wheeler, J. The presumption in favor of the judgment is, that the answer of the garnishee, though filed on the day of its rendition, was not, in fact, until after the judgment was rendered. It therefore was not in time to prevent the plaintiff from taking his judgment. But it is only by force of the statute that the plaintiff is entitled to his judgment against the garnishee. It is a rigorous proceeding, and a right depending upon strict law. The provision is that it shall be lawful for the Court “ after calling the garnishee” to render judgment against him (Hart. Dig. Art. 49.) The statute is plain and positive and must be complied with. There is no case against the garnishee upon the docket of the Court, and the object in requiring him to be called must be to give him notice, before judgment final is entered, in order that if, in fact, he is not the debtor of the defendant in attachment and has no effects of the latter in his hands, he may then avert the judgment by his answer. The record ought to show that the law was complied with. Especially when the garnishee answered immediately, and moved without delay to set aside the judgment because he had not been called as the law provides, we think the Court ought to have set aside the judgment and received the answer. We are of opinion, therefore, that the judgment be reversed, as to this garnishee, and the cause remanded. The judgment cannot be revised and will not be affected as to the defendant in attachment and the other garnishee, not before the Court upon this appeal. Reversed and remanded.