Barber v. Ferrill

STONE, J. 1. Demurrers, under our statute, must be to matters of substance, and such matter of substance must be specified. Objections, not distinctly stated in the demurrer, are not allowed. — Revised Code, § 2656 ; 2 Brick. Dig. 346-7, §§ 275, 277, 279, 280, 281, 283, 285. 2. There is only one ground of demurrer specified in this ease, namely, that the suit is prematurely brought, being brought before the determination of the cause in which the bond was executed. We think this ground not well taken. Garnishment, under our statute, is but a species of attachment ; or, in some cases, a mode of levying an attachment. .See Drake on Attachments, §§ 452-3; McLemore v. Cole, 43 Ala. 620. When the writ is sued out, as in this case, under the amendment-of February 5, 1858, of section 2892 of the Revised Code (see Pamph. Acts 1857-8, 36), it has the prop-erties of an ancillary attachment. It is auxiliary to the suit by summons .and complaint, and is only allowable when [448] oath is made by the creditor, his agent or attorney, “ that he believes process of garnishment against [the person supposed to be indebted] is necessary to obtain satisfaction ” of the claim sued on. The plaintiff in such suit must give “ bond as in attachment cases.” The substance of the bond required in attachment cases is expressed in section 2931 of Revised Code. In garnishment causes the plaintiff is liable for such damages as the defendant in the suit (not the garnishee) “ may sustain from the wrongful or vexatious suing out such ” garnishment. If there be no ground for the process of garnishment, then the condition of the bond is broken, and the bondsmen are liable for the actual damages caused by its issue. If the resort to this process be vexatious as well as-wrongful, then vindictive or exemplary damages may be recovered. We hold that such bond as this is suable u before or after the suit is determined,” under section 2992 of the Revised Code. 3. We think the condition of the bond in this case substantially conforms to the requirements of the statute. It rightly employs the word garnishment, given in section 2931 Revised Code. This is a proceeding by garnishment; and the bond is, in this respect, strictly coi'rect. We will not inquire whether the counts, which have the form of amended complaints, were allowed by the court ornot. Nor will we inquire as to the sufficiency of the breaches assigned. None of these questions seem to have been raised in the court below. If necessary, proper orders can be made in regard to them, when the case returns to the Circuit Court. Reversed and remanded.