Hoffman v. Simon

delivered the opinion of the court.

Defendants in error had a judgment for ‡2,020.87, and a. *305writ of garnishment was issued against plaintiff in error, as a debtor of defendant in the judgment, which writ of garnishment recites that, whereas Levi Simon & Co. had recovered judgment for ‡220.87, etc., and had filed an affidavit, etc., and commands plaintiff in error to appear as garnishee, etc. The writ of garnishment was duly executed, and, the garnishee not appearing, judgment was rendered against him, as such, for $2,020.87, and interest on that sum from the date of the judgment on which the garnishment was issued. There is no affidavit of plaintiff, or agent or attorney, in the record.

An affidavit by plaintiff, his agent or attorney, as required by § 874 of the Code, is a condition precedent to the issuance of a writ of garnishment, without which the clerk has no authority to issue it. Neither he nor the court can dispense with it. Nor can the recital by the clerk in the writ of garnishment supply the want of the affidavit which the statute requires.

The writ of garnishment is original process against the garnishee, and where it states the judgment on which it is issued to be for a given sum a judgment- against the garnishee for a greater sum is erroneous. He might well make default with knowledge that judgment would go against him for the sum stated in the writ of garnishment as the amount of the judgment, but, if he had not been misled by the process, would have appeared and answered.

The judgment against plaintiff in error, as a garnishee in the case stated, is reversed, and the writ of garnishment quashed.