Lupton & Co. v. Moore

Mr. Justice Mercur delivered the opinion of the court, November 20th 1882. This suit was commenced by attachment execution. It issued on, a judgment in favor of the plaintiffs, against Moore, with scire facias against Riley as garnishee. The special verdict found Riley was indebted to Moore in the sum of $276.47 for a balance due for building a house, and that there was due from the defendant Moore, on the judgment, to the plaintiffs, the sum of $158.91. If there was nothing else in the case the plaintiffs were clearly entitled- to judgment on the verdict for the amount due them. The verdict further found the manner in which the writ was served on the garnishee. The court, thinking that service insufficient, notwithstanding the verdict, entered the judgment in favor of the garnishee non obstante veredicto. The writ was served by the sheriff on the 14th October 1879 by leaving a true and attested copy thereof at the residence of J. H. Riley with an adult member of his family, and by summoning him as garnishee. It was duly and personally served on Moore. The sheriff did not otherwise attach [321] any money, good® or effects in liis hands than by the service stated and the command of the writ. It is claimed, inasmuch as there was no personal service on the garnishee, and the sheriff took no actual possession of any property, that the service was so defective as not to sustain a verdict in favor of the plaintiffs. It is not necessary to decide whether the service on the garnishee might not have been held insufficient in case he had moved, at the proper time, to set aside the sheriff’s return. He made no such motion. On the contrary, he appeared generally by attorney. That appearance stands on the record unchallenged. It is a well recognized rule that actual appearance is a waiver of defects in the service of process: Skidmore v. Bradford, 4 Barr 300; Lorenz’s Administrators v. King, 2 Wright 93. In answer to interrogatories he denied having any goods, moneys or credits in his hands in which the defendant had an interest, but admitted his indebtedness to the defendant in the sum of $276.07, in such language that it would have justified the entry of a judgment against him. In his plea he averred the facts set forth in his answers. At no time before verdict, does the record show that the garnishee made any objection to the service on him. On the 28th August 1880 the defendant obtained a rule on the sheriff, the plaintiffs, and the garnishee to show cause why the sheriff’s return should not be set aside. In October following the rule was discharged without prejudice to either the defendant or the garnishee. There is no assignment of error to the discharge of that rule. The defendant was heard, and the jury passed upon the amount of his indebtedness to the plaintiffs. The appearance of the garnishee was a matter beyond the control of the defendant. Neither he nor the garnishee can on a trial of the issue joined defeat a recovery by the plaintiffs, by reason of the service made in this case; therefore— Judgment reversed, and judgment in favor of the plaintiffs against j. H. Riley, garnishee of John H. Moore, for $158.91, with interest thereon from the 14th October 1879, and on payment thereof the said Riley shall be discharged from that amount of his indebtedness to said Moore.