
    Isaac N. Whitehead vs. George W. Henderson.
    H. recovered a judgment against E., and afterwards sued out a garnishment against W., who failed to answer, and a judgment was rendered against him also ) W. then brought the case to this court by writ of error. Held, that in this aspect of the case, errors in the judgment against E. cannot be inquired into. JLliter, if that judgment was void.
    A scire facias cannot issue against a garnishee, until a judgment nisi has first been taken.
    Error, 'from the circuit court of Madison county.
    The facts are stated in the argument of counsel and the opinion of the court.
    
      Hays, Forester, and Howard, for plaintiff in error.
    Henderson, one of the firm of Motts & Henderson, sued out an attachment in his own name, on the 27th of August, 1838, against Charles A. Ely, and garnishment issued against Whitehead and others. At the October term of the Madison county circuit court, declaration filed, and an order of publication against Ely was taken, and an order, indefinite in amount, that a scire facias issue against Whitehead and others, which was issued, returnable to the April term, 1839. On the 13th of February, 1840, judgment final, by default, was rendered against Ely, the attaching debtor, and Whitehead, the garnishee, in favor of Henderson, one of the firm of Motts & Henderson, on a debt due to Waldron, Thomas & Co. The latter judgment is complained of. A plaintiff in a promissory note must sue in his own name, or in the name of another for his use, but cannot sue in the name of a stranger to the note.
    An agent can sue out an attachment for his principal, but it must issue in the name of the principal, not of the agent. How. & Hutch. 548, 549, sec. 11, 12, 13.
    Judgment must be taken by default against the defendant, unless he replevies and pleads, to ascertain the amount, before judgment can be taken against the garnishee. Ib. 552, 553, sec. 23.
    If the garnishee does not appear, judgment nisi must be taken against him, for the full amount of debt and costs, on which a scire facias shall issue, and if he fails to appear, said judgment nisi shall be confirmed for the whole debt and costs. Ib. 553, sec. 24. If the conditional judgment is not taken, the final judgment will be erroneous.
    The writs were not executed in the presence of a credible person, as the law requires. Ib. 549, sec. 14.
    This is error, as the judgments are by default.
   Mr. Chief J ustice Sharkey

delivered the opinion of the court.

The plaintiff in error was summoned as a garnishee, in an attachment sued out by Waldron, Thomas & Co., by their agent, George W. Henderson, against the property of Charles A. Ely. He failed to appear, and a scire facias Avas aivarded, and again failing to answer, final judgment was rendered, Avhich he now seeks to reverse. In this aspect of the case, Ave cannot look into the errors in the judgment against Ely; that is not regularly before us. And yet if it Avere a void judgment, such an inquiry would be proper, because it Avould then be an insufficient foundation for the judgment against the garnishee, and would afford him no protection against his creditor. It Avould be his duty to resist collection under it. The. declaration against Ely was, no doubt, demurrable; but the judgment against him is certainly not absolutely void. Erroneous it may be, but as it is not void, and he acquiesces in it, the garnishee cannot complain. We are only, therefore, to examine the judgment against the garnishee. To this, however, there is an objection which we deem fatal. At the return term of the summons, the default of Whitehead was entered, but judgment nisi was not taken ; a scire facias was ordered without it. This is not in accordance with the statute. By the 24th section of the law in relation to attachments, (Stat. of Miss. 553,) if the garnishee fail to appear and answer, the court, after solemnly calling the garnishee, is required to enter a conditional judgment against such garnishee, and thereupon a scire facias shall issue, &c. The conditional judgment seems to be necessary, to lay the foundation for a scire facias, and no authority is given to order the scire facias without it. If the garnishee still fail to appear and answer, the court is required to confirm such conditional judgment. In this case the judgment was not confirmed, for in truth there was no judgment to confirm. There was, then, a departure from the statutory mode of proceeding, material in its bearing on the rights of the party. He was called on, by the scire facias, to show cause why the judgment nisi should not be made final; to this he was not bound to respond, because there was no judgment which could be made final. The first judgment entered by the court, was entered as final. The garnishee had a right to expect that the first judgment would be conditional, subject to be set aside on his answer, instead of which it was final, and precluded his answer.

Judgment reversed, and cause remanded.  