#### Flanegan, Plaintiff in Error *vs.*Earnest and McCoun, Defendants in Error.

Where parties, after having pleaded in a cause specially, submit by stipulation the trial of the cause to a Judge without a jury, and therein define what evidence may he given, which evidence could not have been admitted under the pleadings, it amounts to a waiver of the special pleadings, and cannot, after trial, bo alledgcd as error.

Matters of fact, submitted to a Court, acting in the capacity of a jury, cannot be alleged as error, to reverse the decision.

In order to charge a garnishee, where his liability comes in question, under the pleadings in the cause, they should alledge no property found to satisfy the execution, as against the original debtor, and that the officer having the execution upon the demand of the plaintiff, summoned the garnishee *in ivriting.*Without this proceeding, the Court could have no jurisdiction over the garnishee.

Judgment cannot be entered against a garnishee by default, where he does not appear in pursuance of a summons. There should be competent evidence given to establish a liability, though the garnishee does not appear, to show him indebted to the defendant in the suit. If judgment should be given without such proof it would he erroneous.

Error to the U. S. District Court for LaFayette County. This was an action of trespass, brought in the District Court for La Fayette Co., for that the defendants in error, with force and arms, took and carried away certain goods, chattels, and personal property, belonging to the plaintiff in error, and converted the same to their use.

The defendants in ert'or filed a general demurrer to the declaration.

The plaintiff in error moved for and obtained leave to amend his declaration.

To the amended declaration the defendants pleaded— 1st. Not guilty; and

*1502d. That in a certain action of assumpsit, where the defendants in error were plaintiffs, and one Mark Allison? was defendant, before a justice of Iowa County, commenced by summons, such proceedings were had, that final judgment was rendered against Allison, and, that the said plaintiff in error having been required to appear as a garnishee, upon an execution duly issuqd upon said judgment, did not so appear, as required, but made default; so that in said cause, such further proceedings were had, that the justice rendered judgment against the plaintiff in error, as garnishee in said action, in favor of the d.efend»-ants in error, for the sum of twenty-five dollars damages, and fifty-five cents costs of the garnishee proceedings. Upon which last mentioned judgment,, execution was issued, &c. By virtue of which execution, a Constable of the County of Iowa, levied upon and sold the property in the declaration mentioned, to satisfy the judgment obtained on the garnishee proceeding? aforesaid; which is the same trespass complained of in the declaration. The plea concluded with a verification.

To the second plea of the defendants in error,, the plaintiffs in error demurred generally.

The parties then stipulated, and, agreed as follows, and filed with the Clerk such stipulation and agreement,, to wit: “ The defendants are to produce the docket of Dyer Divine, a Justice of the peace, in and for LaFay-ette County, containing the judgment relied upon by said defendants, for their defence, together with the wrrits and other papers in said cause, before said Justice; and the Said Justice, Dyer Divine, is to be sworn and present a statement - of facts to the Court, relative to the said judgment, contained in his docket, and upon the statement *151of facts, so presented by said Divine, and upon the said Justice’s docket, containing the judgment relied upon by the defendants, as their defence, together with the papers, writs, &c., in said cause, before said Justice, the Court is to decide whether the defence of the said defendants, so submitted, is a good legal defence, to set up by said defendants; and him, the plaintiff, to be barred from having and maintaining his said action, unless the judgment of said Court shall be reversed. If the Court decide against the defence of said defendants, so set up, then a jury of inquiry be awarded to assess damages in favor of the plaintiff. Neither party loses any legal rights to the points submitted, as to the admissibility of the testimony of said-justice.”

Under the foregoing stipulation and agreement, the District Judge heard the proofs and allegations of the parties; — ordered and adjudged that the defence set up' and relied upon by the defendant, is a good and sufficient-bar to the said plaintiff’s action; and that the said plaintiff be, and he is hereby barred from having or maintaining his action herein, against the said defendants; and it is-also ordered and adjudged here, that the said defendants, do have and recover from the said plaintiff, their costs and charges expended in their defence, &c.”

Upon the hearing of the cause, before the District Judge, the defendants in error produced the docket of the Justice Divine, wherein was entered the cause of McCoun and Earnest, plaintiffs, and Mark Allison, defendant, wherein it appears that on the return day bf the summons, Allison did not appear, and judgement was rendered, therein in favor of the plaintiffs in that suit, against the defendant Allison. That an execution was issued on said. *152judgment, against Allison; and which waS returned unsatisfied. On the same execution there was the following return also endorsed by the officer: that he had “ served the within, summoning in writing, Nicholas Flanegan, (the plaintiff in erl‘or), aá a garnishee, to appear on the return day of the within execution, at the office of Dyer Divine, Justice of the Peace, in New Diggings, in Iowa County.”

It also appealed by the docket of the said Justice, that on the return of the before mentioned execution, he issued a process in favor of McCoun and Earnest, against the plaintiff in error, requiring the officer to levy by distress, the amount of the judgment in favor of MdCoün and Earnest, of the goods and chattels of the plaintiff in error, as garnishee. The officer did levy and Satisfy the execution, of the goods and chattels of the plaintiff in error, as appears by the endorsement to that effect on the execu-' tion.

Justice Divine was also sWorn as a witness before the District Judge, who justified the docket and proceedings had before him, as before stated and set forth. The Justice was questioned by the counsel of the plaintiff in error, whether he entered the judgment against the plaintiff in error by default, or on evidence; answered that there was no *exparte*evidence, and no evidence before him in either case; but that he entered judgment by default, ,as expressed in his docket entry!

The foregoing was all the evidence submitted to the District Judge, on the trial,.under the case agreed upon.

That thereupon the District Judge ordered and determined that the docket entry of the said Justice, of the judgment and executions aforesaid, was a good and legal

*161bar to the action of the plaintiff; and that the testimony of the said Divine was illegal and not competent to be received in explanation of his said docket entry; and that the matter above set forth was a good bar to the action, (unless the judgment should be reversed), and that the defendants recover of the plaintiff their costs and charges about their defence in said suit.

To all of which decisions, of the said Judge, and to the judgment ordered to be entered by him, the counsel of the plaintiff below excepted; and prayed the said Judge to sign and seal such exceptions, which was accordingly done,

*Cothren,*for the plaintiff in error,

contended that the Justice had acquired no jurisdiction over the garnishee, an'd erred in rendering a judgment against him.

He also claimed that the District Judge erred in rejecting the oral testimony, given by the Justice, on the trial, and in deciding that the judgment, rendered by the Justice, was a valid one; and cited 1 *John, Cases,*20: 11 *Johnson's Rep.,*175 *and*444; 3 *Coioen’s Rep., 106 and*19; *John R.,*40, to show that the judgment was a valid one unless reversed by a proceeding *in teni.*

*Crawford,*for defendants in error,

argued that the stipulation and submission before the District Judge, secured no rights beyond the matters therein stipulated, and that the plea in justification was not spoken of or referred to by the stipulation.

That the District Judge had no right to consider the is^ sue before the Justice.

That jurisdiction being once acquired in a cause, it was not necessary to the validity of a plea to state the subset quent proceedings. That this Court will intend, after ju* risdiction is shown, that all subsequent proceedings are-regular.

*162-That thp first judgment mpntione.d in the pleadings, was but inducement to the proceedings, on the second,, and the. mere basis, on, vvhich it was founded. 6 *Jfill’s R.,*120.

That the Justice^ docket showed a valid judgment..

*Revised Statutes of*Wiscoq,sinh336; 9, *Peter’s*i?., 28; IQ, *do...*449,

*By the Court.*

tHubbell, J.

Flanegan. sued Earnest and MeCoun, in the District Court of La,, Payette County, in a plea of trespass. The defendants pleaded the general issue, and also a special plea, setting, up a judgment rendered by Dyer Divine, a Justice of the Peace, 'and an execution issued thereon, under which a levy was mad *% on*the property in question; and averring that this was the “ same trespass” alleged in the plaintiff’s declaration. The plaintiff filed a demurrer to the special plea, which, was overruled by the Court. The parties then entered into a friendly stipulation to submit all thp matters in controversy to the decision of the Judge; and’ it was, agreed,, for that purpose, that the Justice should’ testify as a witness, and tha¿ all the papers on file in his Court-should be admitted as evidence. Under this stipulation, the testimony was given,, the case argued by counsel, and the decision of the Judge obtained thereon. Judgment of the Court followed; and the case now comes here og, a bill of exceptions and writ of error.

It seems to this Court that it is now too late to bringi rip for its decision, questions- arising on the pleadings before the submission, and hearing^ by'stipulation. We-should be needlessly eircouraging litigation and unwarrantably consuming our own time, if not indeed doing positive injustice to the defendants in error, if w;q should concord tq examine mere questions.; of daw which arose in a *163esse prior to a full and apparently fair trial upon the merits, had by the voluntary consent of the parties. As fqr-as we have been able to understand the stipulations entered into in this case, it was the intention of the parties, to have a final disposition of the matter in the District-Court. If-such was not their.purpose, they were unfor-. tanate in the language employed to express their design.., And it is a well settled rule of law,, that when matters of’ fact, are submitted to the decision of the Court, acting in-, the capacity of a jury, a writ of error, does not- lie to re-., verse or correct any error in its judgment upon the facts, in this view of the case, the present writ-of error cannot fee sustained. Since, however, the sufficiency.of-the spec-, ial plea was brought to the notice of the Court, upon the argument, it may be proper., to remark that, if the case, had been brought up on the grounds, stated in the.demurrer, the ruling of the. Court below would-have been held-erroneous. The special plea was..defective in several material particulars. Although,enough was probably set forth to-show the jurisdiction of the Justice in the original action of assumpsit — -that- being mere inducement to the subsequent proceeding under the statute relating-.to garnishees; still, no facts are set forth to show.the right- of the Justice to entertain.this, proceeding..

The plea should, have averred no property found, or not .sufficient to satisfy the execution, and that the officer, Upon fhe demand of -tire. plaintiff, did summon in writing, the garnishees named by him, &c. Withoutthe existence of-these facte, the., proceedings would - not be authorized by-the Statute, *(Stat. Wis., p.*332, Sec. 9,) and the Justice w’ouid- have no jurisdiction.

Again: The defendants,by their plea, did not sufficient-!, *164ly connect themselves with the levy, under the execution against Nicholas Flanegan. It wras not enough to set forth that Coffy, as constable, had an execution and made a levy in a case in which they were named as plaintiffs, and that this was “ the same trespass complained of in the plaintiff's declaration;” but it should have been averred that if the property was taken at all it was done by them under and by virtue oí such execution, or by authority of the constable having the same, and with full legal right; and that such taking constituted the “ trespass complained of,” &c.

Again: The mode of entering judgment against the garnishee, by default, as set forth in the plea, would be irregular and bad. It has probably been the loose practice of many Justices of the Peace, on the return of a summons- regularly served, and the failure of the garnishee to appear, to enter “judgment against him by default,” in conformity as- is supposed, to the strict letter of the statute. But such proceedings are oppressive and illegal. Judgment can properly.be entered against no person, without competent proof of a legal liability. Judgment against garnishees, must be taken “ as in ordinary cases,” and that is when the case is made out on satisfactory evidence. Notwithstanding non-appearance and default, the indebtedness of the garnishee to the defendant in the principal case, must be proved as clearly as that of the defendant, in the first instance; and without such proof, the judgment might l^e reversed for error.

These remarks are made for the purpose of establishing general principles of practice, and not with a view to their beaidng upon the present case, which is decided, as has been stated, upon other grounds.

Judgment affirmed with costs.