
    Berry v. H. and H. O. Anderson.
    Judgment for a debt on an attachment process, when the debt is not matured, will be irregular without an order for the stay of execution..
    A. sued out his attachment for 70 dollars 84 cents; B. as garnishee, acknowledged an indebtedness for 98 dollars 37 cents; the judgmentwas, “ordered by the court, that judgment final by default against B. for the amount of his answer, or so much thereof as will satisfy plaintiff’s debt and costs, and that the plaintiff have execution for the s'ame:” Held, to be irregular for want of certainty. On an attachment, bond for the security of the garnishee is not required until after execution awarded.
    If the attachment be void for irregularity, it cannot support a judgment against the garnishee; and it is his duty to see that the requisites of the law have been complied with, before he satisfies the judgment.
    IN error to Claiborne circuit court.
    The defendants iu error sued out an attachment against Anne M’Causland for 74 dollars 84 cents, and garnished the plaintiff in error, who answered, and there was a judgment entered up against him at the November term of said circuit court, 1834.
    Berry brought his writ of error, and assigned the following errors in the judgment and proceedings below;
    1. The court erred in rendering judgment upon the attachment sued out against Anne M’Causland, for a debt not due at the time of its rendition, there being no affidavit in the record suited to such a case.
    2. In rendering said judgment without a bond having been previously executed by plaintiffs with such stipulations and conditions as the statute requires.
    3. Because .there was no proof that publication against the defendant M’Causland had been made as required by law, nor was there any proof of her removal from the state.
    4. Because the judgment was rendered at the November term, 1834, and the debt did not become due until January, 1835, and there is no stay of execution upon the judgment until that time.
    
      Holt and Chaplain, for plaintiff in error.
    The errors assigned in this case are so glaring, and so frankly confessed by defendants’ counsel, in his brief, tha a bare reference to the pages of the statute book will be sufficient to sustain them
    In support of the first assignment of error, see Revised Code, 165, sec. 20. Second, see Revised Code, 163, sec. 165. Third, see Revised Code, 165, sec. 20. Fourth, see Revised Code, 165, sec. 20. Fifth, see Revised Code, 167, sec. 26. Sixth, Pirtle’s Digest, 11, sec. 25; 1 Littell’s Rep. 27; 3 Marsh. Rep. 135; where it is settled that “ the judgment should be certain and definite and nothing should be left to the clerk to ascertain or sum up by reference to other parts of the record; and if it he not so, no execution can be issued by the order of the court, or otherwise.
    The sole ground upon which the reversal of the judgment, so steeped in error as this is confessed to be, is resisted, seems to be that it is not competent for Thomas Berry, the garnishee, to complain of irregularities in proceedings resulting in judgment against his co-defendant, Anne M’Causland. This position can have no application to the fifth and sixth assignments of error, inasmuch as Berry is himself directly affected by the irregularities therein set forth. The garnishee is only conditionally liable; a judgment against the defendant in the attachment, must as necessarily precede, as it certainly superinduces the consummation of that liability in the shape of a judgment and execution.
    Upon principle, the garnishee should be allowed not merely to complain of errors in the body of the judgment against himself, but he should be at liberty to contest the validity of every step’im the cause leading to that judgment. Without those proceedings against Anne M’Causland (showed to be so grossly and flagrantly erroneous,) there could have been no judgment against her, and, consequently, none against Berry. Are not, then, his interests prejudiced by those errors?
    In the case of Oldham v. Ledbetter, decided by this court at its July term, 1834, this doctrine is established, that “ the garnishee standing in the relation of trustee to the defendant, after service of garnishment, is bound to see that the requisites of the law are complied with.” It results, therefore, as a necessary consequence, that unless bond is given as before pointed out, a payment or satisfaction of the judgment by the garnishee must be in his own wrong, and he will be bound to the defendant or his assignee. Sergeant on Attachment, 126. In accordance with the doctrine of the above case, the garnishee is striving by his writ of error to discharge the duty imposed upon him of “ seeing that the requisites of the law are complied with.” No bond has been executed by plaintiffs below, as required by the 26 th section of the attachment law; this is manifest error, which can only be corrected by this court, at the instance of Berry, and which if he permits to remain uncorrected, he will then pay the judgment “ in his own wrong,” and be liable to pay it over again to Anne M’Causland.
    Maury, contra.
    
    The defendant admits that the record of this case abounds with errors, but he denies that the errors are such as can avail the plaintiffs in error or remand the case to the court below. If the affidavit, the attachment bond and the declaration were all of them defective, and if the judgment were deficient in the recital of facts proved, the defects might furnish sufficient cause of error to be assigned by the defendant to the attachment, provided she could prosecute a writ of error without having first replevied. But so long as the judgment against the defendant in the attachment remains unreversed and probably irreversible, it is not competent for the garnishee to contest the regularity of the proceedings at any stage prior to his appearance. To bind the effects hr the hands of the garnishee to the extent of his acknowledgment, it is sufficient that there is a judgment _against the defendant to the attachment rendered by a competent tribunal.
    The judgment against the defendant is not such in form as it should have been; but the amount of the demand sued for is set forth in the declaration and established by the judgment with sufficient certainty as to the amount; the answer of the garnishee ascertains the precise -extent of his liability and there is nothing to be ascertained by the verdict of a jury. Though the judgment thereupon should be reversed this court will not remand the case, but proceed to render such judgment as ought to have been rendered by the court below. Revised Code, eh. 15, sec. 7.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The judgment to reverse which this writ of error is prosecuted was rendered in the circuit court of Claiborne county against the plaintiff in error as garnishee in attachment. There are several errors in the record, and if they are not beyond the reach of this court in the present shape of the proceeding, the judgment must be reversed. The counsel for the defendants in error has admitted that the errors exist, but insists thaf they are unavailable to the plaintiff, as they are only to be found in the proceeding by attachment against the original debtor, Anne M’Causland.

I do not think it will be necessary to extend the investigation beyond the judgment against Berry as garnishee, although such an investigation would probably be proper if the case should require it. The judgment against the garnishee is based on the proceeding in attachment, and if that proceeding be void for irregularity it could not support a judgment against him, and it would be his duty to see that the requisites of the law had been complied with, otherwise a payment by him would not be a protection against his original creditor. Oldham, use of Coke, v. Ledbetter, decided July term, 1834. The proceeding in an attachment, under this rule, must sustain a relation to the judgment against the garnishee, similar to that which the pleadings bear to the judgment in an ordinary suit, and may be referred to for the purpose of ascertaining what judgment should have been rendered.

Several errors are assigned, but it will be unnecessary to notice, any which do not relate to the judgment against Berry. By reference to the note it appears that it was not due when the attachment was sued out, nor when judgment was rendered, and the statute does not in such cases authorise an execution against the garnishee until the maturity of the debt... Although the party was entitled to his judgment, yet it should be accompanied by an order for stay of execution. In this case the judgment is unconditional and. might hare been enforced immediately for any thing that appears on the record. This is, perhaps, not strictly an error in the judgment itself, yet the court would not he authorised to give judgment except on condition of the stay of execution, and the judgment without it, was therefore irregular. Revised Code, 165. 20.

It is also assigned as error that after the judgment there was no bond given to restore the goods and chattels, or the value, in case the person whose goods were attached should within a year and a day appear and disprove, or avoid the debt, as the 26'th section of the law requires. Although that objection would he valid if presented by the facts in the case, yet it can only be regarded as interposing an impediment to the collection by execution, as no such bond is required until after execution awarded.

The last assignment is that the judgment is uncertain, being for an indefinite sum, and this objection I think is well taken. The amount' claimed by the attachment is 70 dollars 84 cents, and Berry answered that he was indebted to Anne M’Causland in the sum of 98 dollars 37 cents. The judgment is in these words: “ Whereupon ordered by the court that judgment final by default be entered against the said Berry for the amount of. his answer, or so much thereof as will satisfy the plaintiff’s debt and costs, and that the plaintiff have execution for the same.'” This, in truth, is no judgment at all. From the language used it would seem to be a mere order of the court for the entry of judgment. There was certainly no pretext for ‘a default; the garnishee had answered, and was not in default. It bears strong evidences of that clerical inaccuracy which has lately so abundantly flowed in upon us from all parts of the state. But even if we consider it in its most favorable aspect it is not such a judgment as could be sustained. It is not for a specific sum.. Nor is there any thing referred to by which it would be rendered certain. There was an order that judgment be entered against Berry-for the amount of his answer, or so much thereof as would satisfy the plaintiff’s debt and costs. „He answered that he owed 98 dollars, 37 cents, and the plaintiff’s debt is 70 dollars, 84 cents. This was as much a judgment for the one amount as the other, and being equally applicable to both, and uncertain as to which was meant, it was not good for either. That an opportunity may be given the parties to amend if they can do so,

The judgment will be set aside, and cause remanded.  