#### GOULD *vs.*MEYER.

[CBRMOBABI FROM JUSTICE’S COURT.]

1, *Garnishment on judgment by justice of the peace.*— Under the provisions of the Code, ($? -2471, 2819,) a justice of the peace has author!-' ty to issue a garnishment on a judgment rendered by him.

.2 *What constitutes record of garnishment-case.*— Where a justice of the peace sends up to the1 circuit court, in return to a *certiorari,*the affidavit made before him to procure the issue of a garnishment on a judgment, the summons served on the garnishee, the garnishee’s answer, the jndgment thereon rendered against him, and a' statement of the original judgment, — this is, *prima facie,*a suffi*566cient return of the proceedings had in the garnishment ease; arid it is incumbent on the party who objects to its sufficiency to show affirmatively that there were .oth^r proceedings.

3. *Waiver of objection by garnishee to affidavit and summons.*— After a garnishee has appeared and answered, admitting an indebtedness to- the defendant, and a judgment has been thereon rendered! against him, and he has transferred the cause to the circuit couri by *certiorari,*he cannot there raise an objection, for the first time, either to the affidavit, or to the summons of garnishment.

4. *Waiver of right to answer anew.*— If the garnishee, after the rendition of judgment against him by the justice, removes the cause by *certiorari*into the circuit court, and there fails to appear, he cannot compláin on error that he was not permitted to answer anew in the circuit court.

5. *Sufficiency of garnishee’s answer.*— Where the garnishee’s answer admits an indebtedness to the *defendant,*(there being two defendants to the original judgment,) and the antecedent proceedings against him show which one of the defendants is meant, this is sufficient to sustain a judgment against him as, tbe debtor of that defendant.

6. *Answer of garnishee, and who may defend for Mm.*— On the failure of the garnishee to appear .and claim the right to answer anew in the circuit court,' his petition for the *certiorari*cannot be received and treated, on motion of his counsel, as a new answer to the . garnishment; nor can his surety on the *certiorari*bond be allowed to defend for him.

7. *Judgment reversed andrendered.*— On appeal from a judgment against a garnishee, in a case removed from a justice’s court by *certiorari,*an error in the amount of the judgment, which might have been corrected on motion in the circuit’ court, will be corrected by the appellate court, at the costs of the appellant. ' ■

Appeal from the Circuit Court of Mobile.

Tried before the Hon. C. *~W.*Rapieb..

IN this case, it appears that, on tbe ^19th June, 1858, L. H. Meyer obtained á judgment before a justice of tbe peace, for $50, against James Richardson and James Robertson ; that ‘ on tbe 4th September, 1858, he sued put a garnishment on this judgment before tbe justice, wbicb was served on A.. Brown, as tbe debtor of said Robertson; that said garnishee appeared before tbe justice, bn tbe 8th September, 1868, and answered under oath that he would be indebted to1 “defendáut,” on tbe 21st October, 1858, in the sum of $52 78 ; that the justice *567judgment against the garnishee, on said 21st October, for $50, and issued an execution on said judgment on the 28th October, 1858 ;• and that the garnishee then sued out a *certiorari*and *supersedeas,*for the purpose of removing the proceedings to the circuit court, and superseding the execution. In answer to the *certiorari,*the justice returned to the circuit court the affidavit made by the plaintiff to procure the garnishment, . the summons of garnishment served on the garnishee, the garnishee’s answer before him, a statement of the judgment thereon rendered by him, and of the original judgment against Richardson & Robertson, and the execution issued against 'the garnishee. When the cause was called for trial in the circuit court, as the first bill exceptions shows, “ the counsel fer the garnishee moved the court for an *alias certiorari,*requiring the justo certify all the proceedings had,before him” in this cause, on the ground that the papers filed did not constia sufficient return to the certiorari; which motion court overruled, and said garnishee, by his counsel, excepted. Said garnishee, by his counsel, then moved court to set aside said proceedings, and to dismiss on the ground that the said justice had no jurisdicto issue said process of garnishment, because there no law authorizing it; which motion being overruled the court, the garnishee, by his counsel, excepted.”

bill of exceptions states, “ that when the was called for trial, the defendant’s counsel moved court for a continuance, on account of the absence of defendant, who had left the State, and for the want an answer to the garnishment; which motion was by the court, the showing being deemed insuffiThe defendant’s counsel then moved the court in the absence of the defendant to answer, the petifor a *certiorari*be allowed to stand as an answer to garnishment;” and produced to the court certain pa-substantiating the statements of the petition, and to show that the garnishee was not indebted to Robertson. “ The court overruled the motion, and that, though the garnishee might answer anew, his *568answer could not be made in the manner proposed, though he was absent. The plaintiff then moved for judgment against the garnishee, and read to the court the papers on file, but offered no further proof. - To this the defendant, by his-counsel, objected, on the ground that the evidence was not sufficient to entitle the plaintiff to judgment; but the court overruled ¡the motion, and rendered judgment for the plaintiff. H. N. Gould, the surety on the *certiorari*bond given by the garnishee, then made the same motion and objections on his own behalf, and insisted that, if the plaintiff sought to make him liable as such surety, he had the right to make defense on the merits in his own behalf, on the abandonment or absence of the garnishee. But the court' ruled, that the surety could not thus make defense, and that the plaintiff’ was entitled to judgment against him; and therefore overruled said-motions and objections of said surety. To all which opinions, rulings and decisions of the court, the said garnishee and his surety each severally excepted.”

The appeal is sued out by Gould alone,.but errors are assigned in the names of himself and Brown jointly, embracing all the rulings of the court to which exceptions were reserved.

Geo. N. Stewart, for appellant.

G. Y. Overall, *contra,*

A. J. WALKER, C. J.

Justices of the peace have authority to issue garnishments, for the collection of judgments rendered by them. Section 2471, found in chapter 20, title i, part 3, of the Code, authorizes the issue of garnishments-for the collection of judgments.; but it contains provisions indicating that it was not designed to include justices,of the peace. Section 2819 of the Code declares, that the provisions of the title above referred Jo, so far as they are applicable to suits before justices, and not contradicted by any provisions of the title in which section 2819 is found, are “in full force as to the rights of parties and to suits brought before justices.” The statute authorizing the issue of garnishments upon *569judgments is susceptible of application to suits before justices, and is not contradicted by any thing contained in the title which includes section 2819. We, therefore, regard that 'section as bestowing the same authority to issue garnishments after judgment upon justices of the peace, as is by section 2471 bestowed upon the circuit •court clerks. It follows, that there was no error in the refusal of the court below to treat the garnishment proceedings before the justice of the peace as void for want of jurisdiction. ' '

[2.] The justice of the peace, in return to the certiorari, sent up the affidavit made to procure the garnishment, the summons of the garnishee, with the endorsement of service upon it, the answer of the garnishee, and the'exeeution against the garnishee, with a statement of the judgment against him, and of the original judgment against the plaintiff’s'debtor. The papers in the original cause did not belong to the garnishment suit. The justice transmitted the papers and statement from his docket which give a complete history of the regular and accustomed proceedings in a garnishment case before a justice of the peace. — Faulks v. Heard & Due, 31 Ala. 516. It is true, there might have been other proceedings and other papers in the cause, which it was the justice’s duty to send up to the circuit court; but, if such was the case, it is not shown by the record, and we cannot presume it. The defendant excepted to the refusal of the court to award a *certiorari,*to compel the justice to certify all the proceedings before him, upon the ground that the papers filed did not constitute a sufficient return. It does not appear from the bill of exceptions, or other part of the record, that the return was incomplete; and we cannot hold that the court erred in refusing the *certiorari.*The motion for a *certiorari*had no reference to the justice^certificate, and we are not called upon to pronounce upon its sufficiency or insufficiency, as the appellant must be confined to the specific motion made by him. — Wolfe v. Parham, 18 Ala. 441.

[3.] The garnishee came in, and submitted to answer before the justice; making no objection, so far as we can *570learn, to the affidavit upon which the garnishment issued, or to the summons. A judgment was rendered against him by the justice, upon an admission of indebtedness; and he then, by *certiorari,*transferred the case to the circuit court.' After these proceedings, it was too late for hini: to object, either to the affidavit, or to the summons. — Marston v. Carr, 16 Ala. 325; Daniel v. Hopper, 6 Ala. 296; Smith v. Chapman, 6 Port. 365; Clough v. Johnson, 9 Ala. 425; Goss v. Davis, 21 Ala. 475 ; Couch v. Atkinson, 32 Ala. 633.

[4.] The garnishee cannot complain on error, that he was not permitted to answer anew in the circuit court; because he never appeared and offered to answer. — Case & Pate v. Moore, 21 Ala. 758 ; Colman v. Waters, 3 Porter, 381. Whether the circuit court ought to have continued the cause, in order that the defendant might, at a futuro term, appear and answer, was a question addressed to the discretion of the circuit court; and the decision upon it is not revisable.

[6.] The answer distinctly admits, that the garnishee would be indebted, on the 21st October, 1858, the day on which the justice’s judgment was rendered, in the sum of $52 78, *to the defendant.*There were two defendants in the original judgment; but there can be no doubt as to the defendant to whom the garnishee acknowledged an indebtedness, for that is clearly shown by a reference of the answer to the antecedent proceedings against the garnishee. The answer is, therefore, an admission of indebtedness at the date of the.judgment, for an amount exceeding that for which judgment was rendered against the garnishee ; and, by fair intendment, the indebtedness was to the defendant as whose debtor the garnishee was summoned. Such an answer fully justified the judgment reudered-upon it.

[6.] We know of no law which required the court to permit the filing of the petition for a *certiorari*as an answer to the garnishment. If such a practice were established, it would destroy the statutory right to have an oral answer. — Code, § 2540. The surety on the *certiorari**571bond bad obviously no right to intervene and become an active party in the proceedings against the garnishee.

[7.] The judgment of the court belo.w against the garnishee is for too much; but the correction niight have been made in the circuit court, upon motion, and will be made here, at the costs of the appellant. The judgment of the court below must be reversed, and a judgment must be here rendered for fifty dollars, with interest from the date of the justice’s judgment against the garnishee, and the costs of the circuit court.