Rock & Son v. Singmaster

Adams, J. The court discharged Singmaster upon the ground that it had no proper evidence before it that he was [512] garnished. No return was made upon the writ. The questions certified areas follows: ■ “First — Is a written return endorsed upon or attached to a writ of attachment and signed by the officer the only com-i petent evidence that can be produced of its service, when the wi-it itself is in evidence; or may the officer who served it, and failed to make his return, be permitted to testify what he did under and by virtue of the writ ? “Second — Where a writ of attachment, notice of garnishment, and notice to the attachment defendant that the person named in the garnishee notice has been garnished, were regularly issued and placed in the hands of the same constable at the same time, and the notice to the garnishee, and also the notice to the attachment defendant of the garnishment, were returned with a written return endorsed thereon, signed by the constable, showing that the notices were jjroperly served, but no return was endorsed on or attached to the writ of attachment, will such facts prove a garnishment, or raise a presumption that the person named in the garnishee notice was attached as garnishee in the case ? ” The return of a writ of attachment is the report of the officer of what he did under it. It is provided for by statute. Code, § 3010. When made, it becomes the statutory evidence of what it purports to show.' It must be endorsed upon the writ, or made upon a paper annexed thereto. Code, section above cited. The writ and return constitute essentially one record, and must go together. Dickson v. Peppers, 7 Ired., 429; McCrory v. Chaffin, 1 Swan, 307; Union Bank v. Barnes, 10 Humph., 244. Filing the writ with no endorsement of the proceedings is no return, but a return may be made by leave of court, upon payment of costs. Hall v. Ayer, 19 How. Pr., 91; Nelson v. Brown, 23 Mo., 13. If the officer fail to make a return, the court may doubtless direct him to do so. If he refuse, or make a false return, he becomes liable to the party injured. Under the statute and adjudications, it appears clear to us that with [513] out a return an essential record is wanting, and that the court has before it no proper evidence upon which it can base any proceedings against specific property or credits. The alleged garnishee, we think, was properly discharged. Affirmed.