
    Railroad v. Todd & Williams.
    ■Attachment. Judgment void. Garnishment void also. A judgment, founded on original attachment, without service of process, publication or stay of proceedings, is not erroneous but void, and though not appealed from, may be collaterally attacked. The garnishment judgment is doubly void. 1. It is founded upon a void judgment. The nature of garnishment necessitates a valid judgment. It is a sequestration of a fund in the hands of the garnishee, and should operate as satisfaction pro tanto in favor of the garnishee of his debt to the judgment debtor. 2. There was no service of written notice on garnishee and requirement to answer. The service of the original attachment ttpon the agent of garnishee was no substitute. The attachment suit was not against the garnishee. The whole proceeding is not errone■ous, but a nullity and void.
    FROM HAMILTON.
    Appeal in error from Circuit Court of Hamilton, July Term, 1871. J. B. Hoyl, J.
    Key & Eakin, for railroad.
    Burt, Cooke & VanHyke for defendants, said:
    On the 8th day of June, 1866, defendants in error recovered a judgment against plaintiff in error for $222 before a justice of Hamilton county.
    
      Soon thereafter the plaintiff in error filed a bill in chancery at Nashville, attacking the judgment and to enjoin the collection of the money. No injunction, in fact issued, and, after years of delay, the bill was dismissed upon notice of failure to prosecute. Then it was an execution issued from the justice’s judgment. Plaintiffs in error filed their petition for writs of eer-tiordri and supersedeas to quash the execution. Motions were made to dismiss the petition by defendants-in error, and by plaintiffs in error to quash the execution, and each was overruled. Defendants in error being somewhat at sea, filed a plea of former recovery upon said chancery proceedings, which was after-ward withdrawn by leave of the court, no issue upon it having been taken. There was a trial by jury, but matters were so mixed the court set the verdict aside. Finally, the case was submitted to his Honor without the intervention of a jury, upon the question as to the validity of the justice’s judgment. His. Honor gave judgment in favor of defendants in error,, from which an appeal to this court is prosecuted.
    We insist that the petition should have been dismissed upon motion, and if not, that it was properly dismissed upon the hearing, and judgment properly - rendered.
    The petition itself avers the loss of the papers before the justice, and that nothing is left save the-docket to show the judgment. ■
    An exact copy of the judgment docketed is set out. A few days after the date of its rendition, the justice upon the docket writes that it was set aside-by the consent of the plaintiffs. In a day or two-, after, he writes again that the setting aside of the judgment was done by plaintiffs’ counsel and was unauthorized, and reinstates ' the same.
    The action of the justice in this regard was a nullity; or if he had power to set aside the judgment, he also had the power, upon mistake shown,, to set it back again.
    When a justice renders judgment and adjourns, his court is at an end, and he has no further power over it except what the statutes give him: History of a Lawsuit, sec. 676, p. 479.
    The motion to dismiss was made at the first term of the court. The petition shows a want of merits upon its face: 2 Tenn., 110, 179.
    Many terms had passed (a- bill had been filed), and the averments in the petition are limited to the-then information of the present officers of the plaintiffs in error.
    No satisfactory reason appears or is given why the application for certiorari was not made earlier, and if they admit the loss of the papers in the petition themselves, reasons are apparent 'why the writ should never have been granted; 4 Hay., 143; 8 Yer.,. 222; 3 Yer., 408.
    No new trial on the merits is asked for. The' petition is to serve the purpose. of basing a motion to quash the execution, because issued upon a void judgment. When, therefore, the petition itself shows the papers are lost, and the judgment cannot be reached to show the same void, and matters alone alleged in the petition can be looked into, the court itself is closed out from giving relief. ■ If they have any remedy, it is in chancery in such a case: 6 Hum., 210; 3 Head, 346-7.
    The complaining party must bring up the papers. A judgment cannot be collaterally attacked: 1 Head, 556; 5 Col., 260.
    Plaintiffs in error, in the character of proceedings mentioned, have no right to say the judgment is void, from its mere docket appearance. They may show a satisfaction of the judgment from the docket, that is all.
    If these matters can be enquired into collaterally, then the filing of their chancery bill can be looked to show a judgment, and the answer which shows there was; and their ' failure to prosecute upon such evidence is an estoppel.
    Tt is not averred that Tinkum, the agent, did not appear and defend. If he did, it matters not whether a constable or deputy constable served the process.
    Every circumstance goes to show the judgment was rendered against the plaintiffs in error, and any criticisms upon it — that it is against Perkins, or Perkins & Martin, etc. — are fruitless. They are not complaining. It may be Tinkum confessed judgment. He must have admitted the liability of plaintiffs in error, or there would have been no judgment. Proceedings before justices are favored. The docket, as well as all the facts and circumstances, show a judgment.
    The bill in chancery was doubtless for the purpose, as a perusal of it will show, to check and avoid the annoyance of garnishments. They seemed satisfied with the purposes it had served, and let it go.
    We should have had judgment when the court below refused to quash the execution. .
    See the procedure on return of the writ of certio-rari in Caruthers’ History of a Lawsuit, sec. 680, p. 483.
    No evidence is adduced to show the judgment before the justice to- be invalid or void. The. warrant upon which the judgment of the justice is written out is not produced. It cannot be detérmined ' whether the judgment be valid or not upon its face, except by production of the warrant upon which the judgment is written.
   McFarland, J.,

delivered the opinion of the court.

This proceeding originated by a petition to bring into the Circuit Court, and have quashed, an execution issued by W. T. Cate, a justice of the peace for Hamilton county, against the N. & C. R. R. Co., in favor of Todd & Williams, upon the ground that the same was issued without any valid judgment. The question as to the validity of this judgment was submitted to the Circuit Judge, a jury being waived by consent, which was perhaps not necessary; it being a motion to quash an execution, it was properly triable by the judge, though he might have called a jury to. his aid had he so desired. Judgment was rendered dismissing the petition for the amount of the execution suspended. The railroad company have appealed.

It appears that the justice’s papers are Iqst, and the only evidence in his office of the judgment is from the docket, on which this .form of entry appears :

“No. 67. June 8, 1866. Original attachment, and judgment $222. Todd & Williams v. Perkins, or Perkins & Morgan and N. & C. R. R. Co.”

In the column lor stayor appears this entry:

“In this case it is asked by the plaintiff that the judgment be set aside. I therefore set the judgment aside. June 15, 1866. E. Newley, J. P.”

Across this is written these words:

“The setting aside of this judgment is done without the consent of the plaintiff by counsel, and he therefore wishes it reaffirmed. This June 16, 1866. E. Newley, J. P.”

It appears that the railroad company, on the - day of 1866, filed their bill in the Chancery Court at Nashville to have this and two other judgments of a similar character enjoined, for reasons therein stated. This bill was answered by Todd & Williams, but was afterward dismissed for want of prosecution, under a rule of the court, without being brought to a hearing. This bill and answer were read in evidence by Todd & Williams upon the trial of this cause, and from them we gather the nature of the proceedings, as follows:

Todd & Williams, on the 6th of June, 1866, sued out from Newley, justice of the peace, an original attachment against “ C. Perkins, or Perkins & Morgan,” for a debt of $222.11, — the attachment and affidavit stowing that said C. Perkins had left the State, or so absconds that the ordinary process of the law cannot be served upon him. This attachment was returned with an endorsement on the affidavit: “Served the within attachment on T. J. Tinkum, agent of the-bf. & C. R. R. Co., 6th June, 1866, at 2 o’clock p. M., and set for June 8, 1866j before E. Newley, Esq., at 5 o’clock. R. E. Roll, special deputy constable.”' On the 8th of June, the justice entered judgment on the back of the affidavit in these words; “Todd & Williams v. Perkins, or Perkins & Morgan and the N. & C. R. R. Co. Judgment in favor of the plaintiffs against defendants for $222.11 and costs of suit, for which execution may issue. June 8, 1866. E.. blewley, J. P.”

The proceeding was intended to be against Perkins, or Perkins & Morgan, as the debtors of Todd & Milliams, and it was intended to attach by garnishment a debt due one or both of them from the railroad company. This is the history of the proceeding, as stated in the bill referred to, and which is-not materially denied in the answer. Other facts are, however, stated in the answer, not very material. It is stated in the answer that the officers 'of the company had actual notice of the proceedings.

Making all due allowance, and every intendment in favor of the regularity of justice’s proceeding, we think this judgment is void absolutely.

In the first place, it is very clear that the judgment against the garnishee must depend upon the-judgment against the debtor, and without a judgment against the debtor there can be none against the garnishee: Hearne v. Crutcher, 4 Yer., 461; Cooke, 478.

The judgment against the debtor or debtors in this case is void for several reasons, one of which is sufficient. The proceeding is by original attachment, without service of process. The attachment was issued ■on the 6th of June, and the judgment rendered on the 8th, without publication or stay of proceedings. It is true these parties, whoever- they are, have not appealed, but being void and not merely erroneous, the judgment may be attacked in any collateral proceeding.

Then, could there be a valid judgment against the ■garnishee without judgment against the debtors? Certainly not. The nature of the proceeding is that a judgment should be rendered against the debtor, and ■his effects in the hands of the garnishee sequestered for its payment, and such judgment should operate as ■a satisfaction to that extent of the amount due from The garnishee to the debtor.

In this cause no such judgment was rendered, but what purports to be a joint judgment against both ■debtor and garnishee.

There was no service of a garnishment upon the railroad company. The manner of this proceeding is prescribed by the Code, sec. 3749, and requires a written notice to be served on the garnishee, requiring him to appear and answer. This was not done. The return of the officer is that he served the attachment on Tinkum, the agent.” But the attachment was not against the railroad company. Had the company appeared and answered, all other questions out of the way, this objection might have been, waived.

The question is, is this judgment void or merely erroneous? If the suit had been against the railroad ■company jointly with the oth'er parties, and service upon the company, then the judgment would be valid, although void as to the other parties. But that is not the case. There was no suit against the railroad company — the company was a mere garnishee; and, without prosecuting the cause to 'a judgment against the debtor, the justice had no jurisdiction to render a judgment. against the garnishee.

The judgment will be reversed, and the execution .quashed.  