
    S. Housmans & Co., plaintiffs in error, vs. Samuel Heilbron, defendant, and Julius Heilbron, Garnishee, defendant in error.
    The plaintiff cannot have judgment against the garnishee, until he has had judgment against the defendant.
    Motion, in Marion Superior Court. Decision by Judge Worrill, at March Term, 1857.
    This was a motion to enter judgment against the garninishee, upon the following agreed statement of facts, to-wit: The garnishee was served with a summons of garnishment, returnable to September Term, 1856, at that Term of the Court, he made answer, but withdrew the same after it was filed in the Clerk’s office, by the permission of the Court-He filed his answer again at March Term, 1857, on the fourth day of Court.
    And plaintiff moved to enter judgment against him, which motion was refused by the Court, and plaintiff excepted.
    
      Elam, for plaintiff in error.
    Oliver & Clements, for defendant in error.
   By the Court.

Benning, J.

delivering the opinion.

Ought the Court to have sustained the plaintiff’s motion to enter up judgment against the garnishee ?

At the time when this motion was made, the plaintiff had not obtained judgment against the defendant.

The fifteenth section of the attachment Act of 1856, contemplates, that no judgment shall be entered up against the garnishee, until judgment has been obtained against the defendant. Acts of ’56, 39.

To the same effect, was the old law. Cobb Dig. 70, 71, and 73.

Besides, we incline to think, that if the garnishee’s answer is in, by such a time during the term to which it is returnable, as will admit an issue to be formed on it, and to be tried at that term, it is well in.

We also incline to think, that it is competent for the Court to extend the garnishee’s time of answering, from the first term, to a subsequent term.

The judgment of the Court below ought, we think, to be affirmed.

Judgment affirmed.  