
    Henry O’Brien vs. John Liddell et al.
    A judgment-debtor is subject to the proceeding by garnishment at the suit of a judgment-creditor of his own judgment-creditor.
    The first and fourth sections of the act of 1842, (Sheet Acts, p. 140,) in relation to the practice in writs of garnishment, embrace all debtors as wel as the debtors of banks ; the second and third sections apply exclusively to bank debtors.
    A garnishee summons against a defendant residing in a different county from that in which the judgment on which it issues is rendered, is, under the act of 1842, p. 140, properly returnable to the circuit court of the county where the garnishee resides.
    
      Where the answer of a garnishee is contested, the statute (How. & Hutch. 558, § 12,) authorizes a trial by jury, and dispenses with the formality of pleading. If a party summoned as garnishee answer denying his indebtedness, but does not move for his discharge, he is in court until the final disposition of the case, subject to have his answer contested ; and where his answer has been contested, and a judgment rendered against him, and he moves for a new trial, his belief that he had been discharged on his answer will not excuse his neglect in preparing for the issue.
    Where a judgment-debtor is garnisheed as a debtor of his judgment-creditor, and the fact,of indebtedness is in issue, the judgment against the garnishee makes out a prima facie case against him, and if he has discharged it he must show it.
    In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    On the 14th of July, 1845, a writ of garnishment was issued from the office of the clerk of the circuit court of Franklin county, reciting that on the 8th day of November, 1843, John Liddell & Co. recovered of William Vannerson a judgment for |366.84, and that suggestion had been made that Henry O’Brien, Frederick B. Earnest, John R. Stockman, and Daniel Abbott, of Adams county, were indebted to said William Vannerson, and affidavit having been filed that Vannerson has no visible property upon which a levy could be made, the sheriff of Adams county was commanded to summon said O’Brien and the others alleged to be indebted, to appear before the circuit court of the county of Adams, on the first Monday in November thereafter, to answer, &c. This summons was served on the 23d of July, 1845. On the 30th of September, 1845, the clerk of the circuit court of Franklin issued another like summons against William L. Jones, M. W. Diekeson, Philip S. Schuyler, Robert W. Wood and others, on the same judgment, returnable to the circuit court of Adams county, at the November term, 1845, which was executed on Diekeson, Wood, Jones and Young, and returned not found as to the others. There was no term of the court in November, 1845. At the May term, 1846, the cause was continued by the plaintiff in the garnishment; at this term O’Brien filed his answer, denying- all indebtedness, &c., which was sworn to on the 22d day of November, 1845.
    
      At the November term, 1846, the record recites that “ the said John Liddell, plaintiff in said writ of garnishment, for replication to the answers made by the said defendants, and the allegations therein contained and set forth, says they are not correct and true, but that said defendants are indebted to the said William Vannerson, and he prays that the same may be inquired of by the country,” &c. At the same term an order was entered stating that the “ said parties came by attorneys, and the said garnishees moved to dismiss this cause, because the garnishment issued from a judgment in the county of Franklin, returnable to the circuit court of Adams county.” The court overruled the motion.
    At the May term, 1847, the plaintiff appeared by attorney, and dismissed said suit as to garnishees William L. Jones, Robert W. Wood, and James Young, on their answers, and obtained judgment against Dickeson for want of ahswer, for the sum of J$411.13, against Abbott, according to his answer, for the sum of $40, and the order proceeds thus: “And the said plaintiff and the said garnishee, Henry O’Brien, by attorneys, came, and a jury being called, (naming twelve,) who being duly impanelled and sworn the issue joined to try upon their oaths, do say, we, the jury, find that the said garnishee, Henry O’Brien, does owe, and is indebted to the said defendant, William Yannerson, in the sum of $411.13.” On which finding the court rendered a judgment against O’Brien accordingly; and also a judgment against said Dickeson, for $411.13; and against said Abbott for $40. A remittitur was entered for excessive verdict of $25.50; and judgments for costs were also rendered against the garnishees.
    Afterwards, at the same term, O’Brien moved for a new trial, on the grounds set forth in the affidavit, “ because the court had no jurisdiction of the case; because ' there was no issue made up to be tried, nor evidence on which the verdict could be sustained.” The motion was overruled, and a bill of exceptions taken, which contains all the evidence adduced in the trial of the case, as also the affidavit of the plaintiff in error, as the grounds of his motion. This affidavit states that he had within the last two days learned that a judgment had been rendered against him in this case ; that he was taken by surprise, and had since employed counsel to investigate the matter. He states that no step was taken by the plaintiff in the case against him, so far as he knew, until the judgment. He believed his answer was a discharge, and never knew it was contested ; no issue was made traversing his answer, nor had he ever any knowledge that any allegation had been filed, or suggestions made, that he had not discovered the true account of debts due from him to said Yannerson.
    The hill of exceptions states that on the hearing of the motion it was shown to the court that the only evidence before the jury on the trial of the case of the plaintiff against the defendant O’Brien was, “a judgment of the circuit court of Adams county, in the case of William Yannerson against Henry O’Brien, for the sum of three hundred and forty-four dollars, besides costs, rendered on the 10th day of June, in the year of our Lord one thousand eight hundred and forty-five.”
    This writ of error is prosecuted by O’Brien.
    
      Sanders and Haggin, for plaintiff in error,
    insisted,
    1. That under the act of the legislature regulating the writ of garnishment, the answer of O’Brien amounted to a discharge unless the -suggestion was made in obedience to the statute, that O’Brien had not disclosed the true account of his indebtedness, and an issue to try whether a true account had been disclosed, made up. This has not been done. The issue presented by the plaintiff in the garnishment was not the one contemplated by the statute. How. & Hutch. 549, 557, 558.
    
      2. That the bill of exceptions showed that O’Brien had been found indebted on a judgment; and that judgment-debtors could not be garnisheed.
    3. That the circuit court of Adams county had no jurisdiction of the writ; it should have been returned to the circuit court of Franklin. On this point the counsel argued that the whole act of February 25, 1842, to regulate the practice and proceedings in suits against garnishees, had relation alone to bank debtors, and not to ordinary cases of indebtedness. That a contrary construction would be oppressive in the extreme, and ought not to be indulged in behalf of so extraordinary a remedy.
    4. There was no legal issue; the verdict was therefore a nullity, and no judgment could be entered on it.
    
      Reed, for defendant in error,
    replied,
    1. That the statute of 1842 expressly directed the writ of garnishment to be returned to the county where the garnishee resided.
    2. That it had already been decided that a judgment-debtor could be garnisheed. Gray v. Henby, 1 S. & M. 598.
    3. The affidavit of O’Brien showed no diligence; on the contrary, great want of it; without diligence he could not seek favor. Thompson v. Williams, 7 S. & M. 270.
    4. Even if the issue made on O’Brien’s answer be technically insufficient, it is cured by the statute of jeofails.
   Mr. Justice Clayton

delivered the opinion of the court.

The points presented by the record may be disposed of in few words.

It has already been decided, that a judgment-debtor, is subject to the proceeding by garnishment. Gray v. Henby, 1 S. & M. 598.

In regard to the construction of the act of 1842, p. 140, in reference to the practice in writs of garnishment, we think the first and fourth sections are general, and embrace all debtors, as well as the debtors of banks. The second and third sections apply exclusively to bank debtors, but there is nothing to require the same restricted construction as to the others.

The statute (How. & Hutch. 558, § 42,) authorizes a trial by jury, when the answer is contested, and dispenses with the formality of pleading. The party should have moved for his discharge upon the filing of his answer, and as he failed to do so, he was still in court till the final disposition of the case.

The judgment in favor of Vannerson against O’Brien, was legal evidence on the trial before the jury, and made a prima facie case against O’Brien. If he had discharged it, it was his duty to show it.

There seems to have been much negligence on the part of O’Brien in the management of the case below, and injustice may possibly have been done him; but no legal ground is shown for the reversal.

Judgment affirmed.  