Stewart v. Dobbs

McCay, J. It appears from the record in this case, that the plaintiffs had, to a previous term, caused summons of garnishment to issue, directed to Long. The defendant in the principal suit had dissolved that garnishment, by giving security according to section 3488 of the Code. Subsequently, the [84] plaintiff made a new affidavit, and procured a new summons for LoDg. At the return term, the defendant in the suit moved to dismiss this last garnishment, mainly on the ground that the dissolving of the first garnishment prevented the granting of another. To this the plaintiff replied, that the security given by the defendant at the dissolution, is insolvent, and claimed that he had a right to garnishee a second time, under the circumstances. We are inclined to think, although there is no positive prohibition by statute, that, in ordinary cases, if a garnishment be dissolved by giving security, the plaintiff cannot get a new summons. It would seem, at least, that so long as he is secured by that, he ought not further to havrass the defendant. But here the security has failed; why should not the plaintiff have a right to go on, and get a new garnishment? The statute is broad. He may garnishee any time, until he is satisfied, even after judgment against defendant, Code, section 3481. Whilst, therefore, justice to the defendant requires that some limit should be placed upon the power of the plaintiff to harrass him by frequent garnishments, even after he has been perfectly secured by the dissolving of one by security, yet, when it is made apparent that the plaintiff is not in fact secure, we see no reason, and certainly there is nothing in the statute, to prevent a second garnishment. If the plaintiff has been secured by a former one, and that fact appears, the Court will dismiss the second garnishment, at the cost of the plaintiff; and if the defendant is damaged by this litigiousness of the plaintiff, he has his remedy on his bond. Our Code 3027, and the whole policy of our law, is against all formality that interferes with the true rights of the parties. Whenever a person has a right it is the duty of the Court having jurisdiction of the right, to furnish him a remedy; and if the forms and proceedings already in use do not furnish that remedy, it is the duty of the Court to mould its processes and proceedings so as to do justice and equity. [85] Clearly, in this case, the plaintiff has a right. His first garnishment has proved ineffective. We think, therefore, he can proceed again. Judgment reversed.