
    NOVEMBER TERM, 1844.
    
      William B. Frost v. Llewellen Patrick.
    Where a garnishee in his answer gives a narrative of some pecuniary transactions between himself and the defendant, without discovering any indebted-, ness, and it does not appear in the record that the truth of the answer was questioned, a final judgment cannot be entered against the garnishee.
    In such case a judgment nisi should be entered, and a séire facias ordered, &e.
    ERROR from the Circuit Court of Tishemingo county.
    On the 4th day of February, 1840, a summons was issued by a Justice of the Peace of Tishemingo county, against William B. Frost, as garnishee, commanding him to appear before M. Suratt, a Justice of the Peace, and answer what he had in his hands, or what he was indebted to John Payne, against whom an execution had been issued in favor of A. J. & S. Fraley, administrators, &c. by the said Suratt, Justice. On the 29th February, 1840, Frost appeared before said Justice and answered, that he stood indebted to John Payne $20, upon which the Justice entered judgment against him for that sum in favor of L. Patrick. It seems from the subsequent proceedings, that the judgment of Fraley, as administrator, against Payne, was regarded as being for the use of Patrick, although the summons is silent on the subject. Frost executed bond before the Justice to Patrick, and availed himself of the statutory stay of execution. After the expiration of the stay, Frost applied, by petition, to the Circuit Judge for a certiorari and supersedeas. In this petition he states that in 1839, he executed to said Payne, his several promissory notes, one for about $180, and two for $100 each, all due about the 1st of March, 1840. He sets out the judgment against him before the Justice, and states that at the time he answered, he believed he owed the balance of $20 ; but that in March or April, 1840, suit was brought against him on said notes by one John Lindsey, to whom said Payne had assigned them in the year 1839, previous to service of the garnishment; and-that at the October term, 1840, of the Circuit Court, he paid the balance due on the notes, and confessed judgment for the costs to Lindsey. He states that Patrick had no judgment or other suit against Payne; that the cause of action was that Patrick and Payne were indebted on joint note to Fraley, on which judgment had been rendered, and in which note Patrick said he was merely security for Payne ; that he would have appealed in due time, but for the fact that he was ignorant of these circumstances, and of the fact that the judgment before the Justice was no bar to the notes given by him to Payne, which were assigned as aforesaid. The Judge granted the cer-tiorari, and the cause was taken up to the Circuit Court. .In that Court Frost filed another answer, as garnishee, in which he sets out the beforementioned history of his notes to Payne and payment to the assignee. Issue was taken in short, with full privilege .to both parties to rely on everything legal on the trial. On the 12th April, 1842, the Court, without the intervention of a jury, rendered judgment against Frost for $23.20, and costs. From which judgment Frost has brought the 'case to this Court by writ of error.
    
      Work and Calhoun, for plaintiff in error.
    The judgment rendered by the Justice against the plaintiff in error was void ; because, 1st. Patrick was a stranger to the proceedings by attachment before the Justice. 2d. Because the whole proceeding was void for want of the affidavit required by the statute. If so, the Court below erred in predicating a judgment upon it.
    It appears from the amended answer of the plaintiff in error, as garnishee, that the note which he owed to Payne had been assigned before the service of the summons upon him, and by the decisions of this Court, consequently, the debt was not the subject of attachment or garnishment; and upon what ground the Court below could have given judgment for a debt which had been paid to the person legally entitled to it, against the plaintiff in error, in favor of a person not known to the record, and. showing no demand against any one, we are at a loss to determine.
    If the certiorari had been improperly granted, it should have been dismissed, but we know of no principle upon which, under such circumstances, the Court below could render judgment against the plaintiff in error. Besides, there was an issue made up between the parties, which the Court below could not legally try, or give judgment until it was tried by a jury.
    
      Davis, for defendant in -error.
    That the Court may be enabled to see how far the errors assigned in this case are tenable, it will be necessary for me to give a brief history of it, as shown by the record.
    It appears that a writ of garnishment was issued by Melkijah Suratt, a Justice of the Peace for Tishemingo county, on the 4th day of February, A. D. 1840, directed to any lawful officer of Tishemingo county, commanding him to summon William B. Frost, the appellant, to appear before him, the said Justice, and answer to' the amount of his indebtedness to John Payne, against whom there was dfe execution in favor of A. J. & S. Fraley.
    In, obedience to this summons, the appellant appeared, and answered that he was indebted in the sum of twenty dollars. Upon this answer the Justice rendered a judgment against the appellant in favor of Llewellen Patrick:; of this it seems that Frost was notified, and to this he certainly madej no objection.
    This judgment was stayed by the appellant, who enterd into bond payable to Llewellen Patrick
    After the expiration of the stay an execution was issued against the appellant in favor of appellee ; whereupon the appellant filed his ■ petition for certiorari, which was allowed him, and the case taken to the Circuit Court of Tishemingo county. In this petition appellant admits that the proceedings by garnishment were for the benefit of appellee.
    At the April term, 1842, of the Circuit Court for Tishemingo county, the appellant filed a new answer, on which an issue was made up in short by consent, and submitted to the Court for his decision; which decision was in favor of appellee, and judgment rendered for the sum of twenty-three dollars and twenty cents ; from, which decision a writ of error has been prayed to this Court.
    The first, second, and third causes of error assigned by the appellant, extend back to the proceedings before the Justices. Court., It is true, there is some irregularity in the proceedings before the Justices Court, but that cannot now be looked to by this Court; the objection should have been taken in the Circuit Court, if it could have been taken at all. The act of the legislature which provides that all cases when taken into the Circuit Court by certiorari shall be tried de novo upon their merits, was intended to prevent the great inconvenience that would necessarily arise if the errors of the Justices Court were to be looked into and corrected by higher Courts.
    The grant of the writ of certiorari operates under the statute to release all errors that may have accrued in the Justices Court, so far as form goes. The correctness of this proposition, I apprehend, will not be denied by any one.
    By reference to the record in this case, the Court will see that although the writ of garnishment states the judgment as being in favor of A. J. & S. Fraley, yet the judgment in the answer is in favor of the appellee ; the bond for the stay of the execution is payable to the appellee after the case was taken to the Circuit Court of Tishemingo county; no complaint is there made against the judgment on the ground that the proceedings before the Justice did not warrant the judgment; no motion was made to quash or dismiss the case for errors in the Justice. So far from this being done, in the absence of a portion of the paper in the case before the Justice, the appellant comes in and files a new answer, consents to an issue in short, and submits that issue to the Judge then presiding for his decision, which was decided in favor of appellee.
    It will be discovered that the only grievance complained of when the case came into the Circuit Court, was,.that the answer given before the Justices Court was induced by a misapprehension of the liability of the appellant.
    It is submitted, whether, when a party answers to a garnishment before a Justices Court that he is indebted, and a judgment is rendered upon that answer, the party can afterwards complain that injustice has been done him, and have the case taken to the Circuit Court by a proceeding in the nature of an appeal, to free himself from the judgment rendered against him by his own act. I entertain the opinion that he cannot.
    
      In the assignment of errors by the appellant, it is stated that there is nothing in the record that warranted the judgment of the Circuit Court. That may be true, but the Court will see that there is no bill of exceptions taken, containing and setting otit the evidence in the cause.
    In the absence of the testimony showing the judgment to be against the law and evidence, the Court will always presume that the judgment was warranted by the evidence ; and the Court will here notice the fact that the appellant did not even ask for a new trial.
    The only other ground necessary for me to notice,- and which is relied on by the appellant, is, that the sum being greater than twenty dollars, the issue should have been submitted to a jury and not to the Court. It is true, the judgment is for twenty-three dollars and twenty cents, yet the judgment was originally for twenty dollars, which was the principal sum in controversy in the Circuit Court, and which might well have been submitted to the Judge to determine ; the interest was incidental, and might or might not attach. The Judge when he took the case for his determination could not have known that there would be interest, or what amount would be due.
    For the purposes of this case, it was wholly immaterial if the sum had been one hundred dollars ; the parties had a right to agree that the Judge might decide the case without the intervention of a jury; and this Court will always presume, when the Judge has decided the cause and no objections are found in the papers, that the parties consented that he should do so. *
    I admit that the Constitution gives to plaintiff or defendant in all cases where matters of fact are to be tried, the right of trial by a jury ; yet, because the party is secured in this right, it doesmot follow that he cannot waive the right, and submit to the direct decision of the Judge himself.
    After issue joined, the Court never looks behind the issue to see if there is no irregularity in the original process in the cause. A plea to the merits acknowledges the jurisdiction of the Court, and the regularity of the whole proceeding up to the issue. I am satisfied, then, that the Court in this case will not go behind the issue between the parties.
    The principle relied on being familiar, I have not referred to authorities.
   Mr. Justice Thacher

delivered the opinion of “the Court.

The plaintiff in error, Frost, was summoned as a garnishee under an execution issuing upon a judgment of a Justice of the Peace of Tishemingo county, and a judgment, upon his answer, was entered up against him. A stay of execution was obtained upon this judgment, and at its expiration the case was carried into the Circuit Court of that county by a writ of certiorari. In the Circuit Court, Frost filed his answer, upon which a judgment was entered up by that Court, for the amount of the judgment granted by the Justice of the Peace, and costs of suit.

This proceeding was originally instituted, under the statute (How. & Hutch. 434, sec. 38), which provides that where an execution shall issue from a Justice of the Peace against any defendant, and the officer having the same can find no property whereon to levy ; or where the defendant is insolvent, and the plaintiff shall suggest to the Justice that certain persons are indebted to the defendant, — the Justice shall summon such persons as garnishees, and proceed against them as is prescribed in attachments against absconding debtors. Such a garnishee (How. & Hutch. 548, sec. 11), upon being summoned, is required to answer upon oath what he is indebted to such defendant, or what effects of his he hath or had at the time of the service of the summons, and what effects or debts of such defendant are t,o his knowledge in the hands of any other person. If such garnishee (How. & Hutch. 553, sec. 24) fail to appear and answer as thus directed, upon being called, the Court is required to enter against him a conditional judgment, returnable to the next term of said Court, to show cause why it should not be final. In the same statute, regulating this subject (How. & Hutch. 558, sec. 42), it is further provided, that if any plaintiff in an execution shall allege that a garnishee hath not truly answered as directed by the act, the Court shall direct, without pleading, a jury to be empan-Relied, to inquire what is the amount due from the garnishee to such defendant.

In fhe proceedings before the Justice in this case, there appear some irregularities,'but as by statute (How. & Hutch. 429, sec. 19) Ml appeals from Justices of the Peace are to be tried de novo, and, upon the trial there, the parties are not confined to the evidence pro•duced before the Justice, it is most proper to consider this case upon the circumstances as they existed in the Circuit Court.

In the petition for the certiorari to bring the case before the Circuit'Court, Patrick, the defendant in error, is admitted to be the plaintiff in execution, for whose benefit the writ of garnishment was originally issued by the Justice of the Peace. In the Circuit Court, the plaintiff in error, Frost, the garnishee, filed his answer. That answer discloses that Frost had made certain notes in favor of John Payne, who was the defendant in the execution upon which the-writ of garnishment was issued, which matured about the first of March, 1840, being after the execution of the summons of garnishment issued by the Justice, which bears date February 4th, 1840. The answer further discloses, upon fair construction of its language, that the said notes were assigned by Payne before their maturity, of which faet he had notice, and before the notice of the summons of garnishment. In other respects, the answer is full, as required by the act. There does not appear in the record any allegation that the garnishee had not truly answered, though, perhaps, the fact that the parties took issue in short by consent, was .intended to convey that meaning. We cannot, however, supply facts by intendment. Upon an answer of sufficient indebtedness, the Court is authorized to enter up judgment against a garnishee for the debt and costs of the plaintiff in the original execution, as to the amount to which he may confess (How. & Hutch. 552, sec. 23); but the answer, in the present case, did not certainly warrant a final judgment of the sum therein set out. The garnishee is called upon, among other inquiries, to answer “ what he is indebted to the defendant in the original execution.” He does not answer that he is indebted at all, but gives a narrative of some pecuniary transactions between himself and that defendant. He therefore did not discover, according to the statute, any indebtedness.

The judgment of the Court below is therefore reversed, and the cause remanded, with directions to said Circuit Court to enter a conditional , judgment against the garnishee, and to order á scire facias to issue against him, returnable to the next term of that Court, to show cause, if any he have, why final judgment should not be entered against him.  