
    ATNIP v. GILBERT.
    (S. C., Thomp. Cas., 181-183.)
    Nashville,
    December Term, 1859.
    1. GARNISHMENT. Debtov cannot appeal for garnishee’s benefit alone.
    The original debtor defendant has no right of appeal from a judgment rendered against a garnishee (his debtor), when he does not complain of the judgment and execution against himself, but only that the garnishee is ag-grieved by the judgment against him. Such appeal will be- dismissed by the supreme court. [See Code, sec. 5252, and notes. Defenses made by garnishee, note 13 under sec. 4818, notes 1-3 under sec. 5247 of the Code.]
    Cited with approval: Baldwin v. Campbell, 8 Hum., 132; Code, sec. 5252.
    2. SAME. Same. Appeal by party ag-grieved.
    The provision of the Code, sec. 3492 [Shannon’s Code, sec. 5252], which gives the right of appeal in all garnishment cases at the instance of the plaintiff, the defendant, or the garnishee, only contemplates an appeal by the parties respectively who may be aggrieved.
    3. PRINCIPAL AND STAYOR. Pi'incipal’s estate not leviable, stayor’s subjected.
    The statute [Code, secs. 4756 and 4757] making- it the duty of an officer .to exhaust the property of the principal before selling that of the surety or stayor, has no application, where, from the death of the principal or other cause, his estate has ceased to be subject to the execution in the hands of the officer. [Cabiness v. Garrett, 1 Yer., 491; Reams v. McNail, 9 Hum., 544, 545; Gillespie v. Darwin, 6 Heis., 26; Sellars v. Pite, 3 Bax., 126. Notes 2 and 3 under sec. 4757 of the Code.]
    Cited with approval: Cheatham v. Brien, 3 Head, 552; Atkinson v. Rhea, 7 Hum., 59.
   Wright, J.,

delivered tbe opinion of the court*.

Gilbert had a judgment against Atnip in the circuit court of DeKalb county, and the sheriff who had the execution, being unable to find any property of Atnip’s to satisfy the same, made return to that effect^and summoned Thomas Pack to answer upon oath what he was indebted to Atnip.

Pack, in answer, stated that he was indebted to Atnip as the stayor of one Milton, who was dead, in a judgment before a justice of the peace, against the latter, in favor of Atnip to an amount greater than the debt to Gilbertj that this judgment remained unpaid, and had never been revived against the personal representatives of Milton, he in fact, having none. Upon these facts, the circuit court gave judgment in favor of Gilbert against Pack, the garnishee, from which Atnip- appealed to this court.

It is now insisted that the judgment of the circuit court is erroneous, because the estate of Milton should have been first exhausted, before Pack, the stayor, was called on to pay the judgment; that until this was done he was not the debtor of Atnip in the sense contemplated by the garnishment laws-.

For this argument there are two answers. First. Atnip here, has no right of appeal. He does not complain of the judgment and execution against him, but only that Pack, the garnishee, is aggrieved because the estate of his principal is not exhausted. But it does not lie with him to interpose for the benefit of Pack, who is content -with the judgment upon the garnishment. Baldwin & Campbel v. Merrill, 8 Hum., 132.

That provision in the Code, at sec. 3492 [Shannon’s Code, seo 5252], which gives the appeal in all garnishment cases, at the instance of the plaintiff, the defendant, dr the garnishee, and which is but the re-enactment of the previous law on the subject, only contemplates1 the appeal by the parties, respectively, who may be aggrieved.

Second. Secs. 3028 and 3029 of the Code [Shannon’s Code, secs. 4756 and 4757], making it the duty of an officer having the collection of a judgment against a principal and his surety, or stayor, to exhaust the property of the principal, both real and personal, before proceeding to sell the [property of the] surety, or stayor, can have no application where, from the death of the principal, or from other cause, his estate has ceased to be subject to the execution in the hands of the officer.

We need only to refer to Cheatham v. Brien, 3 Head, 552, decided at the present term, and Atkinson & Cobb v. Rhea, 7 Hum., 59.

Appeal dismissed.  