Kirkman v. Hills

Morphy, J., delivered the opinion of the court. H. W. Hills having become the surety of one Frost Thorn, a garnishee arrested and held to bail, at the suit of the plaintiffs, the latter in due course of proceedings moved the court for judgment on the bail bond, after having given him ten days notice in writing of the intended motion. Judgment having been entered up accordingly, the bail appealed. It is urged in this court, that there has been no regular and final judgment rendered against the garnishee, that no writ ‘of fi. fa. and ca. sa. issued as required bylaw, and moreover, that the appellant is not liable under the bond, because it refers to a judgment to be rendered, not to one already rendered. We find in the record a decree entered up in the following words, to wit: “It is ordered and adjudged, that the 525 plaintiffs, Alexander Kirkman fy Co., recover of George Pollett, the defendant, seven hundred andforty-tioo dollars sixty-four cents, with eight per cent per annum interest on six hundred and forty-two dollars sixty-jour cents, from the 1st of Jfovember 1832, until paid, and costs of suit, to be satisfied to the amount of six hundred and forty-five dollars out of the funds attached in the hands of Frost Thorn, garnishee.” The decretal part of this judgment might have been more formal and explicit, as relates to the garnishee, but such as it is, we cannot but consider it as a final judgment against him. In practice the liability.of a garnishee is sometimes decreed on a rule to show cause, served on him subsequently to obtaining judgment against the debtor, but it is as often, and perhaps oftener decreed in the main judgment against the principal. The Code of Practice has laid down no posilive rule on the subject, however, the terms of article 264, would seem to indicate as the proper one, the very course pursued by the plaintiff. It must of necessity, we think, be followed whenever the answers of a garnishee are to be controverted or disproved, for otherwise after a judgment is rendered against an absent debtor it might appear, on a rule to show cause taken subsequently on the garnishee, that the latter has no funds in his hands belonging to the defendant, and thus the court be shown to be without jurisdiction over him. If the wording of the decree in this case could leave it doubtful whether judgment was intended to be given against Thorn, he has shown that he felt himself affected by it, and understood it as a final judgment, by taking from it an appeal which has since been dismissed. In fact, it appears to us clearly from the testimony on file, and the reasoning of the judge below, that the liability of the garnishee was the only difficulty in the case. This was intended to be, and we think has been pronounced upon by this judgment. The facts disclosed by this record render probable the hardships complained of in Thorn’s being decreed to pay over funds, pari of which had previously been attached by another creditor. This hardship, however, he is said to have brought upon himself, by his course of conduct towards the plaintiffs. Be this as it may, this judgment is 526 not before us on its merits, our inquiry in relation to it can oniy ^ whether it is such a final judgment against the gar-n'shee, as can become the basis of the subsequent proceedings requisite to fix the responsibility of his bail. Under this judgment a fieri facias issued, but it appearing from its word¡ng to be directed only against Pollelt, an alias writ was , . , ® , taken out against both defendants, upon which a return of “no property found,” was made; (hereupon, a capias ad satisfaciendum, was sued out, upon which the sheriff returned, 1 ’ that the defendants could not be found in the parish. These, we think, are all the proceedings, upon the due observance 0f which a recovery against the bail is made to depend by our laws. The surety, it is true, even after all this, has the right to surrender his principal at any time before judgmen(, js pronounced against him; this has not been done. As to the objection drawn from the wording of the bail bond, it is a sufficient answer to say, that Thorn having been arrested after the judgment in the inferior court, the prospective expressions used in. that instrument, must be understood to relate to the definitive judgment to be rendered by this court, before which, the case had been brought up by appeal. Where ajudgmentis rendered against the defendant, “to be satisfied to the amount of six hundred and forty-five dollars out of the funds attached in the hands of the garnishee,” is considered a final judgment, as to the garnishee, on which execution may issue against him. may be rendered against both the defendant and garnishee at the same time and in the same judgment. A garnishee may be arrested and held to bail níenT & agahift him and the defendant, after a return of ^¿ot’found&o!” the bail may still at any time besponsibihty as It is, therefore, ordered, that the judgment under review be affirmed, with costs.