
    CASE & PATE vs. MOORE.
    1. When judgment is rendered by a justice of tbe peace against a garnishee on bis answer, who tabes tbe caseto tbe Circuit Court by appeal or certiorari, he is entitled to tbe privilege of answering over; but be will be held to have waived this privilege if be does not claim it by offering to make further answer.
    2. When the proceedings are commenced iu the Circuit Court, judgment by default cannot be rendered against a garnishee, until the fourth day of the term. but this does not apply to cases brought into that court by appeal or certio-rari at the instance of the garnishee.
    3. A judgment rendered against a garnishee will be reversed on error, when tho record does not show that the plaintiff had obtained judgment against the original defendant.
    Error to the Circuit Court of Lawrence.
    Tried before the Hon. Thomas A. Walker.
    David P. Lewis, for plaintiff in error:
    1. The case should have been tried de novo in the Circuit Court. Gayle v. Turner, Minor’s E., 806; Colman v. Waters, 3 Porter, 381.
    2. Before Moore could obtain a judgment final in the Circuit Court, it was necessary for him to take the proper steps in that court to entitle him to it. Case had a right to answer over. Colman v. Waters, 3 Porter 381. On bis failure to answer, Moore should have taken a judgment nisi on the fourth day of the term. Jones v. Hart & Bosworth, 2 Ala., 73. Moore should have exhibited his judgment against El-kins, and the record should show it, before he could take judgment against Case & Pate. G-aines v. Beirne & McMahan, 3 Ala., 114; Leigh v. Smith, 5 ib., 583.
    3. A judgment by default against a garnishee on the third day of the term to which he is summoned, is erroneous, and' will be reversed on error. Randolph v. Peck & Co., 4 Ala., 389.
    R. 0. Pickett, contra:
    
    1. The statute contemplates the viva voce examination of the garnishee in open court; but this may be dispensed with, and the answer received in writing. Here the garnishee had answered in writing, and the court did not err in rendering judgment on such answer. Gaines v. Beirne & McMahan, 3 Ala., 114.
    2. The case of Randolph v. Peck, 4 Ala., 389, is not applicable to this case.
   CHILTON, C. J.

— Case was summoned by process of garnishment to answer what he was indebted to one Elkins, against whom Moore had obtained a judgment before a justice of the peace, and filed his answer in writing, admitting an indebtedness to the amount of thirty dollars, dated 22d February, 1851. The justice rendered a judgment against him for that sum. It appears from the affidavit of Moore, that his judgment against Elkins was for the sum of twenty-four dollars and eighty-five cents, and was rendered the 23d December, 1848, before the justice who gave judgment against the garnishee. Case obtained a certiorari and supersedeas, to remove the case to the Circuit Court, setting forth, in his petition, that his supposed indebtedness accrued by reason of the purchase of certain property of which he had been deprived by title paramount, as ascertained by a trial at law since he made his answer. t The cause being sent up to the Circuit Court, a judgment was rendered against the garnishee and his security on the certiorari bond, for the sum of thirty-three dollars and eighty cents, the judgment entry reciting, that Moore, the plaintiff, came by his attorney on the third day of the term, “ and the defendant failing further to defend his said answer as garnishee in the court below, the plaintiff moves the court for a judgment according to said answer; whereupon it was considered by the court that the plaintiff recover,” &c.

It is contended that this judgment was erroneous, because the case was to be tried de novo in the Circuit Court, and that consequently the garnishee had a right to answer over; that failing to answer, the plaintiff should have proceeded to obtain a judgment nisi and have awarded a scire facias to make it final; but that such judgment, by default, could not be properly rendered on the third day of the term to which the certiorari was made returnable. It is further insisted by the counsel for the plaintiff in error, that the record should show that Moore had obtained a judgment against Elkins.

It is true that the case was to be tried de novo in the Circuit Court, and that the garnishee was entitled to the privilege of answering over, Colman v. Waters, 3 Port. Rep., 381; but it is equally true, that where a judgment has been rendered against him before the justice, and he takes the case up to avoid the judgment, he may waive and does waive this privilege unless he claims it. The plaintiff in the garnishment may, by the production of the evidence of his judgment against the debtor and the written answer of the garnishee admitting an indebtedness, entitle himself to judgment against the garnishee, who must be presumed to have waived his right to answer over by not offering to make further answer.

Neither can the objection, that the judgment was rendered against the garnishee on the third day of the term, be supported. This applies to proceedings in garnishment commenced in the Circuit Court, and not to cases brought up on appeal or certiorari, at the instance of the garnishee, to that court. Were we to give the statute the construction contended for, the result would be that garnishees against whom judgments might be rendered before justices of the peace, could always obtain more than six months’ delay, by appealing to the Circuit Court and failing to prosecute such appeal. In legal contemplation, the party who takes the appeal or brings tbe case up by certiorari, is in court, and cognizant of tbe proceedings bad in tbe cause; certainly be should not be allowed to claim any benefit as based upon bis voluntary absence. The case, when placed upon the docket of the Circuit Court, like other cases of appeal, stands for trial when it is regularly reached.

The last ground of objection taken by the counsel for the plaintiff in error, namely, that tbe record fails to show that Moore had obtained a judgment against Elkins, is well taken, and is fatal to the judgment in this court. This is a summary, statutory remedy, and tbe record should affirmatively show that tbe proceedings conform to tbe statute. This might have been done by the recitals of the record, bad it been properly made up, without setting out the proof of the judgment; but in tbe absence of such recitals, we cannot aid tbe proceedings by intending that there was proof of a judgment. 2 Ala., 253 ; see also, Bostwick v. Kirkland & Beach, 18 ib., 80.

For this error, the judgment must be reversed, and the cause remanded.  