The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-23
DECISIONS OF THE HIGH COURT.
OCTOBER TERN, 1889.
- s11g.l

mo. STl9.
Nathaniel Jeffries vs. John Harms.
This was a punishment or judgment,
under the statute Rev. Code 53I. Art. 5l3'
The process was returnable to March
| term 1883 and was returned by the Sher-
| if as follows" Executed this on W. Z.
| Russum and Nathaniel Jeffries the l4th
day of 1857" The process was issued IN
November 1857: and at the return term,
aiudgment by defaultwas taken against the
| plaintiff in error, AS garnishee Of the
| Judgment debtor, upon his failure to an
swer at that time. under the provisions OF
the Rev. Code $40, Art. p, to reverse
which judgment, this writ of error IS sued
| out.
The first ground Of reversal relied on
IS that the Judgment was final, instead OF
judgment nisi &c; and this presents
the question whether the proceedings in
the matter are governed by the provision
of the Rev. Code above cited, or by the
statute Hutch. Code GIL. 50, which proyi
ded that upon the failure Of the garni
shee to appear and answer, a condition.
al Judgment should be rendered against
him. upon which a Scire f1ciqs should is
sue returnable to the next term dc.
We are of opinion that the proceeding
is governed by the provisions of the New
Code 1t is true, that the garnishment
was issued before that code went into op.
Grafton But the code went into oper-
alton before any further proceedings
were taken in the matter; and by Chap.
/. Art. :. of that code, it is enacted
that the repeal Of any statuarv provis-
ions by this act. shall MT affect any act
done, or any cause Of action or right ac-
cruinS or accrued, or established or anv
suit or proceeding had or commenced in
any civil case, or any plea, or defence, or
bar thereto, previous to the time when
such repeal shall take place; but the PIC
ceedings in every such case shall be con
! formed as far as practicable to the provisions
! ofthe said Revised Code" And by Art ,
of the same chapter the provisions of the
code are to supersede all prior statutory
provisions thereby revised. and by art. 3,
previous statutes repugnant to the provis-
ions OF the code, are repealed.
From these provisions it is plain that
the execution of the writ upon the garni
| shee and the Judgment rendered against
| him, which took place after the code went
| into operation, being mere proceedings
| upon the punishment, We're governed by
| the provisions Of the code: and con,e.
quently that the Judgment, if according
to the modes of the proceeding enacted
I bv the code. was correct as to the form
! and manner in which it was rendered.
The second error assigned is the service
! of the punishment was not such as is re
quired by the Revised Code; and hence tina
il was insufficient to warrant the judgment
by default.
The ground of this objection is, tha
| the Sheritf7s return does not show tn,
| manner in which he executed the process
on the garnishee; and it is insisted tina
it is embraced within the provisions o
Art. Ga. of the Revised Code 4S9, which
| requires that the Original process shall
be served personally on the defendant
to be found, and true thereof delivered
to him" &c The question then. is. wheth
er such process is to be considered n
Original process" within the meaning o
this statute; for if 1t Is. it is necessar,
that the return should show the mode il
which the writ has been served on tn
garnishee, as we have recently held in tn
case of Merritt VS. White.
The process of garnlshment under con
sideration appears to be rather ola nike,
character; partaking partly Of the charaC
teristics Of final process and partly of the M
ture of original process. As to the plaintiff
it is of the former character, being process t
have execution of his Judgment, alread
obtained against his debtor But a
to the punishment it appears to b
purely original process for it is III
means by which he is summoned int
court to answer TO his Indebtedness t
the defendant in the Judgment. Ii ha
the same effect upon him. if the proceed
ings be regular, at if he was sued by tn
defendant in the judgment upon his in
debtedness TO him. The same reason
which are held to require that writ, i.
sued by the defendant in a judgmcn
against him. should be executed and re
| turned in a particular manner, appears {
require that his rights shall be under tn
protection of the same forms of proceed
ing where he is attempted to be made Ii.
be for the same debt by third perso
claiming to have it applied to his use.
In determining the character OF TIA
process, we think the rights Of the "a,
nishee, rs a debtor to the defendant i
n the judgment are entitledto esp,
rial consideration for il was clearl
as a protection to the rights of a part
: sued, that the provisions Of the sta
ute as to the mode Of execution and r,
= turning process. are made in the statut,
, The punishment against him is, so far q
he is concerned, an original suit to recor
, er debt, Of which he should have as fu
/, notice a. if the claim was asserted by th
: suit of his immediate creditor.
, We think, therefore that the garnisl
/ ment must be regarded a. original proce
: 20 the garni-ace. and it - cr1Rrqee
WITHIN The alteration OF the statute MAD
by the Revised Code. Consequently, IL
! service in this case was insufficient, an
the judgment must be reversed and tn
| cause remanded for further proceedings.
. II ANDY