Stickley v. Little

Caton, C. J. This was a. garnishee proceeding, upon a judgment recovered by Little against Smith and Brady. The affidavit on which the process was issued, is as follows: STATE OF ILLINOIS, Personally appeared before me, George Harlow, Clerk of the Circuit Court of Tazewell county, William E. Parker, who, being sworn according to law, deposes and says, that William Little et al. obtained a judgment against T. W. Smith, and Robert Brady, on which judgment an execution was issued, and returned by the sheriff of the county, “ No property foundand that the defendants have no property within the knowledge of this affiant, in their possession, liable to execution ; and this affiant has just reason to believe, that Robert C. Stickley is indebted to Robert Brady, or has some effects or estate of the said Brady in his hands. W. E. PARKER. Subscribed and sworn to before me, this the \ 6th day of December, A. D. 1860. >■ George H. Harlow, Cleric. ) The process was served on Stickley, against whom a default was taken, and a judgment rendered for one hundred and fifteen dollars, and sixty-six cents. No interrogatories were filed, for the garnishee to answer. This default was wrong. The affidavit was insufficient to justify the judgment. It does not state the amount of the judgment recovered against Smith and Brady. By his default, certainly Stickley admitted no more funds or property of theirs in his hands, than the affidavit showed was the amount of the judgment against them. But it was irregular to take the default until interrogatories were exhibited for the garnishee to answer. Until then there was nothing for him to answer, and he was not bound to appear. The judgment is reversed, and the cause remanded. Judgment reversed.