Alston v. Dunning

Walker, J. We think the Court erred in holding that, after the appearence term of an attachment, the plaintiff must sue out a summons of garnishment as in cases pendente lite, i. e. make, out a new affidavit, give new bond, etc. We apprehend that the error occurred in construing the 3215 Section of the Code. That section makes it the duty of the officer issuing an attachment, on request of the plaintiff, to issue summons of garnishment returnable u at the Oourt to which the a tachment is made returnable.” We do not think that these words make the summons necessarily returnable at the term of the Court to which the attachment is made returnable ; but intended to compel the plaintiff to bring the garnishee into the same Court, where the attachment is pending. If this be not the correct view of the statute, it may he a question, whether a summons of garnishment can be issued at all, in an attachment case, after the appearance term; for sections 3461-2 of the Gode might, perhaps, be construed to apply to cases in personem only. Without expressing any opinion on this point, however, we will say, we can see no good reason for requiring the plaintiff to make a second affidavit and bond in a case like this. The condition of the attachment bond, Sec. 3190, and the condition of the garnishment bond, See. 3462, are substantially the same. The defendant, then, can sustain no injury, because he has, in the attachment bond, the security which the law gives him under the garnishment bond, against the wrongful suing out of the summons of garnishment. Again, the plaintiff shall not have judgment against the garnishee until he has obtained judgment against defendant; Code, Sec. 3411. This summons was returnable to the judg [231] ment term of the attachment, and was as early as a judgment could have been rendered against the garnishee any how. Judgment reversed.