Moore, Jenkins & Co. v. Allen

Bleckley, Judge. Defendant in attachment, in order to dissolve garnishment, gave bond with security, the bond being conditioned to pay the eventual condemnation money, so far as the effects and moneys garnished shall be found liable to the plaintiffs’ demand. After recovering on the attachment, the plaintiff moved the court to enter up judgment on the bond against principal and security. The court held that the bond did not conform to the statute, and denied the motion. This decision was not excepted to, and was never reversed. The plaintiffs 68 then brought an action of debt upon the bond against the security alleging a breach of the condition. At the trial, they offered in evidence an answer, admitting assets in a certain amount, made by the garnishee, in the attachment case, after the bond sued upon was executed. The court ruled the answer inadmissible. Defendant (the security) offered as a bar to the action, the record of the prior motion and the judgment of the court thereon. This was admitted, and the court, in effect, held it. conclusive. No judgment was shown fixing any liability upon the garnishee, or declaring the moneys or effects in his hands subject to the plaintiffs’ demand. The bond either dissolved the garnishment or it did not-If it did,- then the motion to enter judgment upon it should have prevailed : Code, sections 3319, 3540. The denial of* that motion was an adjudication that it did not; and if it did not, then the bond, if good at all, was simply a common law bond, and its condition would .have to be read accordingly. The condition, it will be seen, is not for the pajunent of the eventual condemnation money, further than “as the effects and moneys garnished shall be found liable to the plaintiffs’ demand.” Without a judgment on the garnishment, it cannot be said that the effects or moneys garnished have been found liable to the plaintiffs’ demand. What we rule upon the whole case appears in the head-notes. Judgment affirmed.