Scott, Bondurant & Adams v. Patrick

McCay, Judge. t. The Act of 1869, regulating proceedings before Justices, under the new Constituían, makes no attempt to direct the manner of proceeding against a garnishee. Section 3228 of the Code stands, therefore, unrepealed. That section expressly provides that judgment shall not go against the garnishee if he fails to answer until the second term. It is true that, under the new system the magistrate does not hold his Court on a fixed day in each month for the trial of all cases. But it is true that there is a fixed day for each case. That day may fairly be said to be the term for that case. If it is not tried on that day, a new day is required to be fixed. Why should not that be the second term? We see no special objection to this view. Unless some such view is taken we see 191 no method of getting a judgment against a garnishee at all, in a Justice’s Court. In this defect of legislative provision the Courts must, as section 3185 of the Code directs, furnish remedies according to the right of the parties. We think, therefore, that as the Code, section 3228, gives to the garnishee a continuance till the second term, and the Act of 1869 does not repeal this, he has still this right. The magistrate must continue the case against him to another day. This, in analogy to the time fixed by law for the service, we think ought to be at least as distant as the number of days he must be served previously to the first term. We are aware that this is an arbitrary rule, but as he is entitled to a term, we think this is in the spirit of the law. It is to be hoped that the Legislature will provide more in detail for the changes'which the new Constitution makes in the duties and powers of magistrates, as it is very difficult for the Courts to harmonize the provisions of the Code with the provision’s of the Constitution. 2. The agreement that the other cases should abide by the decision of the Court in this case, was, in effect, an agreement to have this case decided upon the question made in all, to-wit: the right of the magistrate to enter up the judgment on the 5th of January. This involves a waiver of any points of form in this case, or any defect in the notice; since it cannot be supposed that it was the intent of the parties to consent that the other cases, in which perhaps, the notice was given, should turn on a point of notice in this case. It was an agreement which involved the idea that this case be decided upon the point of law common to all the cases.