Cornwell v. Hungate

Blackford, J. — This was an action of debt brought in 1844, by Hungate against Cornwell, and two others. The declaration contains three counts. The first is on a writing obligatory payable on the 1st of April, 1842; the second on a writing obligatory payable on the 25th of December, 1842; the third for money lent, &c. There are seven pleas. To the first, second, third, and fifth, there were general demurrers. On the others there were issues' of fact. The demurrers were sustained. [157] The issues of fact were submitted to the Court and judgment rendered for the plaintiff. The first plea is only to a part of the amount sued for. It sets out judgments in attachment recovered before the commencement of the present suit, viz: in May, 1841, by one Baker and others against the present plaintiff, before a justice of the peace, and also judgments in the same suit, and in favor of the same persons rendered at the same time against Cornwell, as garnishee. It alleges that the judgments against Cornwell, as garnishee in said attachment, were for the same indebtedness now sued for, and that he had paid those judgments against him before the commencement of this suit. The' proceedings in the attachment are set out in the plea. Verification. Three objections are made to this plea. 1. That it appears that the debt attached in Cornwell’s hands as garnishee, was not due when the judgments against him were rendered; 2. That the judgments against Cornwell are not alleged to be for the debt now sued for; 3. That the affidavit for the attachment does not state of what county Hungate was a late resident. There is nothing in these objections. The first and third have relation only to what, at most, might render the judgments erroneous. Judgments in attachment, notwithstanding such objections, are valid until reversed. Doe e. d. Wilkins v. Rue et al., 4 Blackf. 263. The second objection is not supported by the facts. There is an express averment in the plea, that the judgments against Cornwell are “for the same indebtedness upon which this suit is founded.” The second plea is similar to the first, except that it does not aver that the judgment against the garnishee was for part of the same debt' for which the present suit is brought. This plea, for the want of such an averment, is bad. The third and fifth pleas are bad, as they profess to be a bar to the whole cause of action, when, if they are answers at all, they are so only as to a part. H. P. Thornton, for the plaintiffs. G. G. Dunn, for the defendant. There are no questions raised by the subsequent proceedings in the cause. Per Curiam. — The judgment is reversed, with costs. Cause remanded for further proceedings. Costs here.