
    Brotherton adm'r. of Brotherton dec’d. v. Anderson.
    I. Where judgment by default has been rendered against a garnishee, for failing t > appear and answer interrogatories, — in proceedings under the 17th sect, of the 2d art. of the act minting to attachments. R. C. Id35, p. 8fi, — the plaintiff1 must establish, by competent testimony, the amount of the indebtedness of such gam if In e to the dj-fondant: and fina! judgment can only be rendered again*t the gar niahee for the amount which heactuiily owes the defendant, end not for the amount which the defendant may appear to owe to the plaintiff.
    2- Whore the justice, in such ease; renders final judgment againstthe garnishee for the amount of the plaintiffs demand against the de-fendanl — without any evidence to establish the amount of the indebtedness of the garnishee to the defendant — the judgment is irregular, a-nd not cured by lapse of time.
    Error to St. Louis Circuit Court.
    
      Jfamilton. for Plaintiff.
    
    L We are not too late for this application, (2 voh Mo. TL. 329.) Nor is the plaintiff estopped from denying the legality of the proceedings before the justice, by having j aid the amount of judgment. 6 Cowen 300. 10 Wendell 351.
    2. The proceedings before the justice were whi lly irregular, null and void. R. C. 84, sec. 3. R. 0. 86, sec. 17. 1 Pet. U. S'. C. C. Reports 30, 36 10 Wheat. 192. 2 Crunch 445. 2 Mass. 213. 5 Han. and Johns. 130.
    
      Bowlin for Bef’t. in error.
    
    The defendant, in error relies upon the statute regulating appeals from justices courts. The 2nd section of the 8th article, “but no appeal can be taken to a judgment by default, unless, within ten 'days after rendering such judgment, application shall have been made to the justice, by the party aggrieved, to set xhe same aside, and such application shall have been refused.”
    
      Sec. 3rd. “No appeal shall be allowed in any case, unless the following requisites be complied with: 1st. The appeal must be made within ten days after judgment ed; or, when the judgment is by default, within ten days after the refusal of the justice to set aside the default and grant a new trial.
   Opinion of the Court Delivered by.

Tompkins Judge.

On the fifth day of August, in the year 1887, the said John J. Anderson commenced an action before Joseph Walsh, a justice of the peace of St. Louis county, against J. Snow-den Hopkitu', by attachment, and James Brotherton, in his life time, was summoned a; garnishee.

The suit was founled on a note for $143.55. • On the day of trial, Brotherton not appearing, tile juitice entered up judgment against him for the amount of the note. Execution was issued against Brotherton, and on the 27th day of September 1837, the execution was returned satisfied. On the 30th clay of July 1S38, the said James Brotherton departed this life, and Marshall Brotherton, the plaintiff in this proceeding, became his admini-trator. On SUthof April, 1839, Marshall Brotherton, administrator of sadl James Brotherton dec’d, having given notice to the said John J. Anderson, moved the justice to set aside the judgment, given a-i aforesaid against the said James Brotherton in his life time, for irregularity. The justice of the peace over ruled the motion, Brotherton, the administrator, prayed an appeal which was refused; and having stated these matters, in the form of an affidavit, he applied to the circuit court to make an order to the said Walsh, to show cause why he did not grant an appeal in the case above mentioned. The court over ruled this motion, and the plaintiff in the motion, Bro-therton administrator as aforesaid, brings the cause into this court by writ of error.

In case the garnishee, being duly summoned, shall fail to appear at the proper time, the plaintiff may take judgment against him by default, which maybe proceeded on to final judgment, in like manner as in cases between plaintiff and defendant; or, at the option of the flaintifl', the justice shall attach the body oí the garnishee, until he shall make full and direct answers to the interrogatories required to be answer-e(j. See section 17th of the act to recover debts by attachment before justices of the peace, page 86 of the digest of 1835. To ascerfcliJ1 how to proceed to final judgment, in cases between plaintiff and defendant, we must resort to the act to establish justices courts, and to regulate proceedings therein.

Where judgment by de-iaulthas been rendered a-ntfchee aior* failing to awer iuterrog-atones, — in nndeTthe6* th«2nd ar/of the act rela-menta,atRaC(b 1835, p.86. — must cBtab-ff h»h, by com-mony, the a-indebtedness6 of such garni-defendant;6 judgment only be rend-thedgaraishee for the a-hi actually3 feiXiit10 and not for the thedcVndant may appear plaintiff.

This being a judgment by default, we roust resort to the fifth article of that act. Bv the first clause, of the first seo- . . , , ‘ , , , , tion, of that article, if the suit be founded on an instrument writing, &c., and the plaintiffs demand be liquidated, is given for what shall appear to be due by that instrument. But the second clause of that section provides, that if the suit be not founded on an inslrument of writing, &c., and the plaintiff appears in person, or by his agent, the just*ce Proceed to hear his allegations and proofs, and shall determine the cause as the very right thereof shall appear ft’0® the testimony; and if it appear from the testimo-that the plaintiff is entitled to recover, judgment shall be rendered by default against the defendant, for so much as tfie testiinonv shows the plaintiff entitled to, with costs, see page 359 of the digest of 1835. But on the part of Andor-son, the defendant in this motion, it is contended, that the judgment ought to be given against a garnishee, in a judgment by a default, for the full amount that the defendant aPPear to owe to the plaintiff; and the plaintiffs do-mand being founded on a note, that Brotherton ought to b& adjudged to pay the amount of the note, otherwise no person summoned as a garnishee, would appear in obedience to the writ The argument proceeds upon the supposition of much v*ce *n *he community, and the necessity of imposing a hea-penalty on the garnishee, for the interest of the plaintiff the action. It is not reasonable to suppose, that the legislative body would require a garnishee, who perhaps owes ten dollars to the defendant, in attachment to have a judgment by default rendered against him for $143, merely because he failed to appear in obedience to the summons.— indeed the plaintiffs have no evidence to establish the indebtedness of the garnishee to the defendant in their attachment, and still believe that the garnishee is indebted, he may apply to the j us tice to attach the body of the garnishee, till he shall make full and direct answers. See section 17 of the law of attachments before justices, page 86 of the digest iooO*

jaYic^ia^10 such ease, g dust the garnishee for amount ot'tiiwlmin'd iko whhout”añy e',idunoe t° establish the amount of the indebtedness sheo to the defendant; the judgment is irregular, and not cured by lapse of time.

The docket of the justice shows a judgment irregularly obtained by the plaintiff in the attachment, against the garnishee, such an irregularity is not cured by lapse of time. — Such being the opinion of this court on this point, it becomes useless to consider other points made by the counsel of therton, the plaintiff in this motion. The circuit court will , i ... make-an order to the justice, to' allow the appeal from hi decision on the motion of Marshall Brotherton, adm’r James Brotherto i; to set aside the judgment by which was entered up by said justice against said .lames Bro-therton in his lile time, summoned as garnishee as above .. , , i ,. mentioned, or, to show cause to the contrary. Such is the opinion of the Supreme Court. 1  