
    C. B. Alexander v. J. C. Lloyd et al.
    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.
    From the circuit court of Holmes county.
    Hon. C. H. Campbell, Judge.
    Appellant, Alexander, plaintiff iu a judgment against the Equitable Fire Insurance Company, of Meridian, Mississippi, caused a writ of garnishment thereon to issue against J. C. Lloyd and others, the appellees herein, returnable before the circuit court of Holmes county on the fourth Monday of November, 1892. The writ was executed personally on the garnishees, but the service was not had until two days before the return-day. The garnishees did not appear at the return-term, and on the third day thereof judgment by default was entered against them for the full amount of plaintiff’s judgment. Ou a subsequent day of the term, said garnishees moved the court to set aside the judgment against them, because the writ of garnishment had not been served on them five days before the return-day. This motion was sustained, and the judgment was set aside, and plaintiff appeals.
    
      Hooker $ Wilson, for appellant.
    While it is true that a writ of garnishment, as to the garnishees, is original process, it is not required to be served five days before court. A fair construction of § 2134, code 1892, is that the garnishment shall be served in the same manner that a summons is required to be executed. But the latter part of the section shows that all the time the garnishee can require is five days after personal service before judgment, Avhether the service be two days before court or on the first day of the term. If he does not answer within five days after service, plaintiff is entitled to judgment.
    The garnishees were in court, both by service of process and by appearance, and the plaintiff was entitled to judgment.
    
      Cochran $ Bozeman, for appellees.
    We submit that a writ of garnishment must be executed in all respects as a summons. Code 1892, § 2134. It must be made returnable to a term of the court. §§ 2130, 2131. The garnishee must answer on the first day of the return-term. §2140. As a writ'of garnishment is original process, and controlled by the law applicable to a summons, where the service is within five days before the-return-day, it is effectual only to require appearance at the term next after that to which it is returnable. § 3417. Counsel for appellant admit that the garnishee must have five days’ personal service, but deny that it must be five days before the return-day. Such a construction would be contrary to the obvious meaning of all the code provisions above cited.
    The latter part of § 2134 has no application to the original writ of garnishment.
    The filing of the motion to set aside the judgment was not such an appearance of the garnishee as validated the judgment already rendered.
   Cooper, J.,

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.  