Ahrens & Ott Manufacturing Co. v. Patton Sash, Door & Building Co.

Lumpkin, Justice. 1. One of the main purposes of the Supreme Court-practice act of 1889 was to dispense with irrelevant and superfluous matter in bringing cases to this court. Accordingly, we have no difficulty in holding that where-no pai’t of the record is necessary to be sent up, the writ-of error should not be dismissed because there is no-transcript of the record. In the present case it affirmatively appears that the bill of exceptions contains everything necessary to a proper adjudication of the case. In overruling the motion made to dismiss it, we are conforming to the spirit, if not the letter, of the act of 1889, and also to the will of the legislature, very frequently manifested in recent years, and expressly stated in its most recent enactment with reference to practice-in this court, to the effect that cases shall not be .dismissed when there is enough before this court to enable it to ascertain substantially the real questions made and which the parties seek to have decided. 2. Garnishments’may issue where suit is pending, or where judgment has been obtained. Code, §3532. In the former case, successive garnishments may issue from time to time before trial without giving any additional bond. Code, §3536. In no case is the plaintiff entitled to a judgment against the garnishee until he has obtained judgment against the defendant. Code, §3547. Where a suit is begun by attachment and a garnishment is issued, and afterwards a judgment in the attachment case is rendered in favor of the plaintiff against-the defendant, that case is ended, notwithstanding an issue may still be pending between the plaintiff and the person garnished, upon a traverse to the garnishee’s answer. The pendency of this issue will not authorize the plaintiff, after obtaining judgment against the prin 250 cipal debtor, to have a garnishment issued against another person by virtue of the affidavit and bond originally sued out. If he desires to obtain other garnishments upon the judgment already rendered in his favor, his remedy clearly is to institute new proceedings for this purpose, which he is authorized to do under section ■3532, above cited. 3. Where the plaintiff, after obtaining a judgment against his debtor, causes an unauthorized second garnishment to be issued, as above indicated, although that garnishee may answer denying indebtedness to the defendant, he will not thus be estopped from moving, at the trial of an issue formed upon a traverse to his answer, to dismiss the entire garnishment proceeding upon the ground that the garnishment itself was unlawfully issued. Garnishment bonds are required for the protection of the defendant in the suit or in the judgment upon which the garnishment is issued, and therefore such defendant is interested in the question as to whether ■or not a garnishment is legally issued. It is his substantial right to have a valid garnishment bond as a basis for all garnishments sued out in a case to which he is a party defendant. A garnishment is a suit, and' the bond is the foundation of it. If the foundation be wanting, the suit is a nullity. These things being so, the mere answering of a garnishment issued without legal authority will not prevent the garnishee from raising the question as to the validity of the garnishment itself. The garnishment suit being void, and the defendant in the main suit or judgment being vitally interested in having the void suit so declared, no waiver by the garnishee can make it a valid proceeding. If it •could, and the plaintiff obtained judgment against the gai’nishee, he would thus be enabled to collect money to which, as against the original debtor, he was not legally entitled. Consequently, the garnishee would not be pro 251 tected, because, in a suit against him by his creditor, it would be no defence to urge he had paid out the money upon a judgment rendered on a garnishment illegally issued. For this reason, it would be clearly his right to move to dismiss the garnishment proceeding on the ground that the original suit, as a basis of a summons of garnishment, was no longer pending; and if the above reasoning is sound, his right to make this motion would not be cut off merely because he had -filed an answer to the garnishment. Judgment affirmed.