Rogers v. Moore, Jenkins & Co.

Brown, C. J. In the view we take of this case, it is not necessary to consider the question of the Alabama liens or the conflicting rights between the plaintiffs in attachment. The record shows that the sheriff, whose duty it was to levy the attach-, ment, which was done in this case by serving Rogers with summons of garnishment, afterwards gave the garnishee ■written notice, that the'defendant in attachment had given bond, and that the attachment was dissolved. After Rogers received this notice, acting in good faith, as we must presume, as his answer was not traversed, he paid over to Persons, the defendant in attachment, the amount due him. At the next term of the Court, the defendant objected to a judgment on his bond, on the ground that it was not in legal form. This objection was sustained in favor of the defendant in attachment, and the Court then gave Rogers •time to answer the summons of garnishment, which, he did, insisting on the notice from the sheriff that the garnishment was dissolved as his protection. And after hearing ■the answer, the Court -allowed judgment to go against the garnishee for the sum due by him to the defendant at the time the summons of garnishment was served úpon him by the sheriff. To this judgment Rogers excepts, and we think .the exception is well taken. Attachments returnable to the Superior Courts are directed to all .and singular the Sheriffs and Constables of this State: Revised Code, section 3206. Section 3221 declares that service of the attachment by serving process of garnishment shall be as effectual for all purposes, as though the attachment had been served by levying the same upon the property off the defendant. By section 3243 it is provided that, when an attachment has been levied upon the property of a defendant, it shall be the duty of the officer levying the same to delivemthe property so levied upon, to the defendant, upon his giving bond with good security, payable to the plaintiffs in attachment, obligating themselves to pay the plaintiff the amount of the judgment and [389] costs that he may recover in said case, etc. Section 3488 of the Code declares that the. defendant may dissolve the garnishment and have the same- dismissed, upon filing in the Clerk’s office of the Court where the suit is pending a bond with security payable to the plaintiff, etc. Now, construe all these sections together, and it seems to be a reasonable conclusion that the sheriff to whom the attachment is directed, who may levy it by serving summons of garnishment, as was done in this case, and who may take bond from the defendant in attachment, and allow him to replevy the property levied upon, is the proper officer, in case the levy was by summons of garnishment, to approve the bond when tendered to dissolve the garnishment, and to file it in the Clerk’s office. The sheriff having received the bond in this case, and having notified the garnishee that the garnishment was dissolved and dismissed, and he having-acted upon that notice, and paid to the defendant in attachment the amount he owed him, we hold that he is no longer liable. As this is not an action against the sheriff we express no opinion as to his liability. Judgment reversed.