Sheppard v. Powers & Brothers

Sheppard v. Powers & Brothers. Garnishment in aid of Pending Suit. Judgment by default on process not signed by clerk. — When a garnishment is sued out in aid of a pending suit, and the record shows that the summons was not signed by the clerk, a judgment by default against the original defendant is void, and a judgment by default against the garnishee is also void. Appeal from the Circuit Court of Hale. The record does not show the name of the presiding judge. W. & J. Webb, for appellant. Coleman & Seay, contra. [MAJORITY — SAFFOLI), J.] SAFFOLI), J. The appeal is from a judgment by default, rendered in favor of the appellees, against the appellant, as garnishee. The garnishment, was in aid of a suit pending between the appellees as plaintiffs, and D. Smith as defendant. The error assigned is, the judgment against the defendant Smith was by default, and the summons was not signed by the clerk. The record shows this to be so. The judgment against the defendant, Smith, is void for want of jurisdiction of his person. Winnemore v. Mathews, 45 Ala. 449. Without a valid judgment against him, in favor of the plaintiffs, the garnishee would not be protected. Flash, Hartwell & Co. v. Paul, Cook Co. 29 Ala. 141; Dew v. The Bank of Alabama, 9 Ala. 323. The judgment is reversed, and a judgment will be rendered in this court, discharging the garnishee, and imposing the costs of this appeal, and of the garnishment proceeding in the court below, on the appellees.