Layman v. Beam

The opinion of the court was delivered by Sergeant, J. The first error assigned is,- that the original writ issued in the cause was not a good and legal writ; and the reason given is, that it contains no suggestion of the nature of the property to be attached, whereas the mode of proceeding under the act of assembly depends on that. The act of the 16th of June, 1836, sects. 35, 37, relating to levying an execution on a debt due to the defendant, prescribes that it shall be done in the manner allowed in the case of a foreign attachment: “ but, in such case, a clause in nature of a scire facias, against a garnishee, in a foreign attachment, shall be inserted in such writ of attachment, requiring the debtor to appear, &c.., and show cause why such judgment shall not be levied of the effects of the defendant in his hands.” The act of the 13th of June, 1836, § 43, prescribes the form of the writ in foreign attachment ; and in it the precise property to be attached, is not required to be stated; but the writ is as here in' general terms. We do not, [185] therefore, think there is any thing in this error. The clause in the writ in nature of a scire facias is also objected to; but the only error there is in inserting the name of the defendant, as well as of the garnishee, which, however, is no more than surplusage. The second, fourth, and fifth errors, seem to be pointed at the sheriff’s return. In the original return there is evidently a clerical mistake in stating the debt to be due ■ by Andrew Layman, instead of Caspar; for Andrew was himself the defendant, and the return is .of a levy “ on a debt due to him,” which could not be by himself. And when it is taken in connection with the amended return, and the whole proceedings, it is evident that it was a debt due by Caspar Layman that was levied on, and that Caspar was warned as garnishee. It is objected that if the amended return is to be considered as right, then the property attached is not specified, and no judgment could be given. But we think the first return, and the amended return, are to be taken as one, and then it is of a ievy of a debt of about $600 due by Caspar to Andrew, and that they were both summoned. There can be no doubt the court had the authority to allow the sheriff to amend his return, by supplying according to the fact what was deficient in the first. The third error is, that the judgment axiáfi.fa. were illegal; and this error we think is sustained. The garnishee made default, after service of the writ, by not appearing; and the judgment was, that the plaintiff have execution against him, to be levied of his goods and chattels, for the amount of the plaintiff’s judgment against the defendant, and that the garnishee be discharged as against the defendant for the sum so attached and levied of the'debt or moneys of the defendant in his hands, with the costs. No provision is made in the act of assembly as to the nature of the judgment which the plaintiff is to have against the garnishee, where the garnishee makes default in his appearance after service of the scire facias. The only cases provided for are, first, where the garnishee neglects or refuses to answer interrogatories ; then, by § 57, he is to be adjudged to have in his possession goods and effects of the defendant to an amount sufficient to satisfy the plaintiff’s demands, and execution is to issue in like manner as in a judgment against him for his proper debt. The other case is, where there is a verdict against the garnishee; then, by § 58, the jury are to find what goods are in his hands, and their value, and the execution is, not in the first instance against him as for his proper debt, but it is twofold; first,?by § 59, of the goods or effects so found in his hands, or so much as may satisfy the plaintiff’s- demand; and by § 60, against him as of his proper debt, if he refuses to produce the goods and effects. And this seems to us to be the proper mode of proceeding in the case of a judgment by default. For a default to appear is tantamount to a confession that he has in hands the property attached; but there is no contempt of court in refusing to answer interrogatories ; therefore, no immediate [186] judgment is given to make him personally responsible. This seems to be the course under the custom of London in cases of judgment against the garnishee by default: for it is said in the Complete Attorney, 66, 67, and Priv. Lond. 260, cited Serg. Att. (2d ed.) that if the garnishee fail to appear as he ought, he is taken by default for want of appearing, and judgment given against him for the goods and money attached in his hands, and he is remediless at common law, and in equity, by reason of his non appearance, though he hath not one penny in his hands; and, if taken in execution, must pay the money or go to prison. . Such also is the form of the judgment and execution in cases both of default and confession in the precedents under the custom of London, given in Serg. Att. 236, 238, 260. 'And the call of the scire facias in the act of assembly of the 15th of June, 1836, § 35, and the 13th of June, 1836, § 54, is to show cause why execution should not be levied of the effects of the defendant, in the garnishee’s hands. The judgment and execution must, therefore, be reversed, with directions to the court below, to enter judgment against Caspar Layman, the garnishee, by default for want of appearance, and that the plaintiff have execution of so much of the debt due by the said Caspar and the said Andrew, the defendant, and attached in the hands of the said Caspar, as may satisfy the judgment of the plaintiff against the said Andrew, with interest and costs; and if the said Caspar refuse or neglect, 'on demand by the sheriff, to pay the same, then the same to be levied of the said Caspar, his goods, lands, and person, according to law, as in the case of a judgment against him for his proper debt; and that the said Caspar be thereupon discharged, as against the said Andrew, for the sum so attached and levied of the debt and moneys in his hands, &c. Judgment and execution reversed.