
    NOVEMBER TERM, 1844.
    John W. Thompson, et al. v. Moses D. Shelby.
    It is error to render judgment against garnishees, without evidence, whose answer is in proper form, admitting a former indebtedness, but averring that they had received notice of the assignment of their notes, or the evidences of such indebtedness before the service of the summons ofgarnishment.
    Error from the Circuit Court of Claiborne county.
    
    The facts of the case fully appear in the opinion of the Court.
    Thrasher, assigned the following for error.
    1. That said Circuit Court of Claiborne county erred in setting aside the first answer filed by the garnishees without notice, and in rendering a judgment nisi against said garnishees, and awarding a scire facias thereon, after the first answer filed and leave had been given to answer over in full to the next term of the Court; which answer was on file at the time of entering the judgment nisi.
    
    
      2. That said Court erred in rejecting the said answer of the garnishees, tendered in open Court on 7th of December, 1841, as insufficient, and in rendering a judgment against them final, after answer, denying their indebtedness, without a jury.
    3. That said Court erred in rendering judgment against Thomas W. and Benjamin W. Thompson, as garnishees, on their answer, without the intervention of a jury to try the truth and falsehood of their answer ; the same being demanded by the garnishees, and the garnishees having answered that they were not indebted.
    4. That said Court erred in rendering a judgment against the garnishees final, after the execution against John W. Thompson had been levied on the 11th day of May, 1841, on .property of John W. Thompson sufficient to satisfy the same, which levy remained undisposed of at the time of rendering said judgment against the garnishees.
    Wherefore and for other errors apparent of record, the plaintiffs in error, by their attorney, pray that said judgment of Claiborne Circuit Court may be reversed, annulled, set aside, and held for naught.
    Thrasher, for plaintiffs in error.
    Four errors are assigned in this case to reverse the judgment of. the Claiborne Circuit Court, which judgment seems to be contradicted by the record throughout, and to constitute an anomaly in judicial proceedings, irreconcilable alike to the statute, to the rules of practice^ and to the Common Law.
    1st. Said Court erred in setting aside the first answer filed by the garnishees without notice, and in rendering a judgment nisi against said garnishees, and awarding a scire facias thereon. After the first answer filed, leave had been given to answer over in full to the next term of the Court; which second answer was on file at the time of entering up the judgment nisi.
    
    The first answer filed by the garnishees, was full and explicit to the point in every respect, and responding to the commands of the statute (see H. & H. 557, s. 39), and denying that they were indebted, or knew of any person that was. The Court had no power therefore under the statute to set this answer aside as insufficient; and the setting it aside constituted error. Neither had the Court any power to enter the judgment nisi, or to award the scire facias under .the statute. u If,” says the law, “ it shall appear that said summons or garnishment had been lawfully served or executed upon said garnishee or garnishees, and he, she, or they fail to appear or discover on oath or affirmation,” as by the act directed, “ it shall be lawful for the Court, after solemnly calling such garnishee or garnishees, to enter up a conditional judgment against such garnishee or garnishees, and thereupon a scire facias shall issue, returnable to the next term of the Court, to show cause, &c.” (H. & H. 557, s. 40.) The garnishees did not fail to appear and answer, nor were they solemnly called by the Court, which event alone could have authorized the Court to enter judgment nisi, and to award scire facias. Therefore the setting aside the answer of the garnishees, the entering judgment nisi, and the awarding scire facias under the state of proceedings in the case, were all acts unauthorized by the statute, and constitute error, especially after leave had been given to answer over. How. & Hutch. 557, s. 39, 40.
    2d. The Court erred in rejecting the second answer of the garnishees, tendered in open Court on the 7th day of December, 1841, as insufficient, and in rendering a judgment final against them (after answer denying their indebtedness), without the intervention of a jury. The principles involved in this assignment of error have been considered under the first head, with the exception of the latter part, which will be considered under the third.
    3d. That the Court erred in rendering judgment against the garnishees on their answer, without the intervention of a jury to try the truth or falsehood of their answer, the same having been demanded by the garnishees, and they having answered that they were not indebted.
    There are but three modes by which the Court could render judgment against the garnishees; 1st, on a confession by the garnishees on answer of indebtedness (Rev. Code, 160, s. 6, 18) ; 2d, by default of the garnishees to answer after judgment nisi, and the return of a scire facias served (How. & Hutch. 557, s. 40) ; and 3d, upon the verdict of a jury, on suggestion of a false answer) where the garnishee fails to answer truly. How. & Hutch, 558, s. 42. The judgment rendered by the Court was not according to either of the three modes authorized by the statute. The garnishees did not confess to be indebted ; they did not fail to appear and answer ; the plaintiff in execution did not suggest that the garnishees had not discovered the true amount of debts ; and no jury was empannelled, although demanded by the garnishees. The answer of the garnishees was an end to the proceedings, unless a suggestion of a false answer had been made ; in which case, “ the Court shall direct, without the formality of pleading, a jury to be empannelled to inquire, &c.” H. & H. 558, s. 42. But without suggestion of a false answer, and without the formality of a jury, the Court proceed, nolens volens, to render judgment against the garnishees in opposition to their answer, and the express provisions of the statute.
    4th. The Court erred in rendering a final judgment against the garnishees, after the execution against John W. Thompson had been levied on, the 11th day of May, 1841, on the'property of the said John W. Thompson, sufficient to satisfy the same, which levy remained undisposed of at the time of rendering said judgment against the garnishees.
    No principle of law is better settled, than that the levy of an execution upon property sufficient to satisfy the judgment, is an extin-guishment and satisfaction of the judgment, so long as the levy remains undisposed of. 6 Wend. 563 ; 12 Johns. 208 ; 4 Cow. 417 ; 7 Wend. 221 ; and the cases there cited.
    The bill of exceptions, and affidavit for a new trial, contained in the record, exhibit numerous other errors, either' of which are deemed sufficient to reverse the judgment.
   Mr. Justice Thacher

delivered the opinion of the Court.

A judgment had been obtained by Shelby in the Circuit Court of Claiborne county against John W. Thompson, upon which execution issued, and was returned nulla bona. Subsequently an alias execution was issued, which was levied upon certain slaves. These slaves were claimed by Thomas W. Thompson and Benjamin Thompson, who gave a bond and duly made up an issue to try their right to the property. No further steps appear in the record to have been taken upon this issue. After this, the record shows that Shelby filed his affidavit, and obtained a writ of garnishment directed against Thomas W. and Benjamin Thompson, to answer as to their indebtedness, according to the statute, to John W. Thompson, the defendant in Shelby’s original execution. At the return term of the writ of garnishment, which was that of November, 1840, the garnishees came into Court and filed their answer. At this term of the Court, the cause was' continued without any order being taken in it. At the May term following, to wit, on the 4th day of June, 1841, the Court ordered the answer of the garnishees to be set aside for insufficiency, and a conditional judgment to be entered against them, as provided by statute, for want of an answer, and a scire facias to issue. In the mean time the record shows a further and amended answer of the garnishees, which appears to have been filed on the 5th day of June, 1841. At the return term of the scire facias, which was November, 1841, the garnishees on the 7th day of December, 1841, tendered an answer to this writ, which was adjudged by the Court insufficient^ and a judgment final was entered against them for the amount and costs of Shelby’s original execution. In a bill of exceptions, there is embraced an affidavit of the garnishees, which contains their statement that the conditional judgment in the case had been set aside upon their motion, and leave given them to file an amended answer ; but that the clerk of the Court had nevertheless entered the judgment nisi, and issued a scire facias thereon. That these were the facts in the case, does not otherwise appear in the record. The certification of the Court to the bill of exceptions, is a certification that such an affidavit was then and there made, but it is not a certification to the truth of the statements made in the affidavit. It is the testimony only of parties interested.

The answer tendered by the garnishees at the return term of the scire facias, was indeed their answer in amendment of the answer to the original writ of garnishment, but the record shows that it was offered as their final answer to the scire facias. This an'swer does not appear defective in form. In substance it confesses a former indebtedness to John W. Thompson in the sum of $114,000, which was secured by several promissory notes made by the garnishees in his favor, payable in various sums annually from 1840 to 1849. It adds, however, that the garnishees had received notices before the summons of garnishment was served on them, from holders of the seven first notes; that the same had been assigned to them by John W. Thompson; and also that they had received notice from John W. Thompson, before the service of the summons of garnishment, that he had likewise assigned the two remaining notes. It has been decided, both by this Court and in other States, that under such circumstances, a judgment of indebtedness cannot be entered against a garnishee. See Ante, p. 291, Yarborough v. Thompson; 7 Yerg. 45, Huff v. Mills. The answer, moreover, sets forth a series of circumstances and reasons upon which the garnishees claim that there exists a total failure of consideration for the sums remaining due upon the notes at the time of the service of the summons of garnishment. We think the answer was improperly pronounced insufficient.

The judgment of the Court below is therefore reversed, and the cause remanded, with directions — if the plaintiff in the original execution does not see fit to suggest that the garnishees have answered falsely, and thus present an issue for a jury, as allowed by the statute — to discharge the said garnishees upon their answer.  