Alexander v. Lloyd
Alexander v. Lloyd
Opinion of the Court
delivered the opinion of the court.
The service of the writ of garnishment was. not made five days before the return-day, and, for that reason, could not support a judgment at the return-term. Section 2134, code 1892, provides that writs of garnishment “shall be served as a summons is required by law to be executed.” Section 3417 provides that summons “ shall be executed five days before the return-day thereof; and if executed within five days before the return-day, it shall be good to require the appearance of the party at the term next after that to which it is returnable.” Section 3427 declares in what ways the service shall be made. The purpose of § 2134 is to place writs of garnishment under all the rules applicable to other original process.
"Where there has not been personal service upon the garnishee, no final judgment can be rendered against him, but a judgment nisi must be taken, with scire facias returnable to the next term, “unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter.” Code 1892, § 2134. It is the scire facias, and not the original writ, to which this clause refers.
■ Judgment affirmed.
Reference
- Full Case Name
- C. B. Alexander v. J. C. Lloyd
- Status
- Published
- Syllabus
- 1. Garnishment. Service. Judgment by default. Code 1892, 2134, 3417. Section 2134, code 1892, requires writs of garnishment to be served as a summons. Under ? 3417, where the service is within five days before the return-day, the garnishee is not required to answer until the next term. In such case, judgment by default cannot be taken against him before the next term, and the fact that five days have elapsed after service, and before entry of the judgment, does not change this. 2. Same. Personal service. Scire facias. Code 1892, § 2134. The last clause of \\ 2134, which provides that if a garnishee be not personally served, and make default, judgment nisi shall be rendered against him, and a scire facias awarded, returnable to the next term, unless the court be satisfied that he can be personally served at once, “in which case it may be returnable instanter,” applies only to the service of the scire facias, and does not obviate the necessity of serving the original writ five days before the return-term.