Cockfield v. Tourres

Tama ferro, J. The plaintiff obtained judgment against the defendants for $2500 with interest, and against the garnishees, Llorens & Curiy, in solido, for $1171 with interest. From this judgment the garnishees alone appeal. The plaintiff and appellee moves to dismiss the appeal on the ground that the garnishees have brought in'the proper court an action to-annul the judgment appealed irom; and that the action to annul is still pending. We know of no law which precludes a party from appealing from a judgment rendered against him because he has resorted to another means of defense against that judgment. The motion to dismiss is overruled. On the merits, the only matter in controversy necessary to consider,. at the present stage of the proceedings, is the question as to the sufficiency of the notice to the garnishees of the order to answer the interrogatories. The garnishees were duly brought into court by citation on the ninth of June, 1871. An order was rendered for them to answer the'interrogatories on the fifteenth of that month, and notices issued which the sheriff returned ; he was unable to serve from the obstruc- - tion of high water which prevented him from reaching the domicile of the parties. Tiie time was extended for answering, and the sheriff again failed from the same cause to serve the notices. Finally, on the sixth of November the time was extended to the fifteenth of that month,' and the sheriff returned that he had served a copy of the - [169] order on A. J. Carry, ono of tile members of the firm of Llorcns & Curry, the two garnishees, on the fourteenth of November, tho service being ma<de at his store twenty-five miles from tlio court house. It has been, hold that whenever an act is to be done by a party personally which can not be done by his counsel, he is entitled to a special notice of the order and of the particular day on which ho is required to comply -with it, before he can be deemed to be in default. 2 An. 11. . • The garnishees in this case wore required to answer in open court on the fifteenth of November, and the notice was not served until tlio fourteenth, the distance between their domicile and tho courthouse being-twenty-five miles. This can not, we think, be held a compliance with law. Whenever notice to a party is required and the law fixes no specific time to intervene between service of the notice and the time when the required act is tp be performed, a reasonable time is implied. We think in this instance tho garnishees wore not allowed a reasonable time for answering, and therefore the judgment taken against them pro confesso was premature. It is therefore ordered, adjudged and decreed that the judgment of the lower court, so far as it affects Lloreus & Curry, cited as gar-, nishees, be annulled, avoided and reversed, reserving- to the plaintiff the right to have legal notice of the order to answer served upon the garnishees. It is further ordered that this case be remanded to the lower court to be further proceeded with according to law.