Byers v. Baker, Peterson & Co.

BRICKELL, C. J. These cases were submitted in connection with the case of Cunningham & Son against the appellees. The principal question involved in that case was decided adversely to the appellants. There is in these cases a bill of exceptions, which as we construe it', raises two questions. The first of these questions, is,' whether the court below erred in refusing to refer to a jury the truth of the allegations in the answer of the appellants, a demurrer to the answer having been sus-tained.-- The-demurrer to the answer having-been su-s; tained, there was no issue of-'fact, which cohld- be'raised bn it.- -The demurrer was an'admission-upon' tine record [176] of a]l facts in the answer well pleaded. The judfm,ent sustaining it, was the sentence of the law, that these facts were not sufficient to bar the appellees of the relief sought by the motion. The second question arises from the refusal of the court to render judgments by default against the defendants. It has long been settled, that in the absence of a general appearance by a defendant in attachment, a judgment by default or nil (Licit can not be rendered against him, unless there is a levy upon property on which the judgment may operate. If, as was true in these cases, the only levy is by the summons of a garnishee, there must be a judgment against the garnishee to support a judgment against the defendant. — 1 Brick. Dig. 165, §§ 161, etseq. This rule is not changed by the statute, .(Code, § 2936), which requires that notice of the attachment and levy be given the defendant by publication, if he resides without the State. The purpose of that statute is to render the case triable at the first or return term of the attachment if the publication is perfected twenty days before the commencement of the term. We find no error in the records, and the judgments must be affirmed.