Peet, Simms & Co. v. Whitmore

Land, 3. This suit was commenced by attachment for the recovery of $3,471 54. McKleroy & Bradford, were made parties garnishees, to whom interrogatories were propounded, in answer to which they admit they have in their hands $1,661 22 in cash, and forty-three bales of cotton, the property of the defendant. The plaintiffs obtained judgment against the defendant, and afterwards judgment against the garnishees, in these words : “ It is ordered, adjudged and decreed, .that McKleroy & Bradford, garnishees herein, be condemned to pay to these plaintiffs, Peet, Simms & Co., $1,661 22, together with such further amount as may be due to the defendant, G. S. Whit-more, from the net proceeds of the said forty-three bales of cotton, when ascertained, and which shall comprehend and include all of said net proceeds, or such part thereof as together with the said sum of $1,661 22, shall pay in full the amount of said judgment, interest and costs, rendered in this case on the 3d of May, 1858.” The record discloses the facts, that the execution which issued on this judgment against the garnishees, has been enjoined, and that a contest is going on between C. Yale, Jr. & Co., Smith <& Brother, and the plaintiffs, Peet, Simms & Co., for a priority of privilege upon the money, and the proceeds of the cotton which were in the hands of the garnishees. These proceedings, however, are not before us, and the only question for our decision is, whether the judgment against the garnishees can be maintained. The judgment does not liquidate the amount due from the garnishees, for the forty-three hales of cotton, and is, therefore, wanting in finality, which is an essential requisite of all judgments final. O. P. 539. The judgment should have fixed contradictorially with McKleroy & Bradford, the amount due from them on account of the proceeds of the cotton, and for this error it must be reversed. It is, therefore, ordered, adjudged and decreed, that the judgment against the garnishees, McKleroy <& Bradford, be reversed, and that the cause be remanded to the lower court for further proceedings against them, according to law. It is further ordered and decreed, that the plaintiffs pay the costs of this appeal.