Prestwood v. Tillis & O'Neal

Prestwood v. Tillis & O’Neal. Garnishment in aid of Pending Action. 1. Presumptions on appeal to support judgment against garnishee. — On appeal from an absolute judgment rendered against a garnishee, where the transcript shows none of the proceedings had in the Circuit Court, except the conditional judgment rendered against the garnishee upon his failure to answer the writ of garnishment, and the rendition of absolute judgment against him at a subsequent term of the court, nothing to the contrary appearing upon the face of the proceedings, the presumption will be indulged, from the recitals in the entry of the judgment, that all necessary steps were taken prior to the rendition of the absolute judgment against the garnishee, and that the proceedings were regular. Appeal from tbe Circuit Court of Covington. Tried before tbe Hon. JOHN P. Hubbard. On tbe 4tb April, 1887. Tillis & O’Neal brought suit by attachment against Z, T. Allen, and bad a writ of garnishment issued, to James A. Prestwood. Tbe return of tbe sheriff shows that the writ of garnishment was served on Prestwood April 4,1887. At the term of the court in March, 1888, a conditional judgment by default was rendered against the garnishee. The transcript does not contain a notice of the conditional judgment, issued to the garnishee by the clerk, nor any return by the sheriff showing service of such process. Nor is any judgment against the defendant in attachment set out in the transcript. But the trans-script contains a final judgment rendered against the garnishee on August 28, 1890. The entry of this judgment, as copied in the record, recites the rendition of the conditional judgment against the garnishee; that a scire facias was ordered to issue to him, which was done, and legally served on him; that on March 13, 1889, the plaintiffs recovered a judgment against the said Z. T. Allen for the sum of $187 12-100, and the costs of suit; and that said garnishee had failed to answer or show cause why the said conditional nent should not be made absolute. The garnishee appeals, and now assigns as error the rendition of the absolute judgment against him. J. D. GARDNER, and W. D. Boberjcs, for appellant. John GAMBLE, and P. N. Hiceman,. contra. [MAJORITY — STONE, O. J.] STONE, O. J. The only error assigned on this appeal is the judgment rendered by the lower court in a garnishment proceeding. There is no bill of exceptions in the transcript. None of the proceedings had in the Circuit Court are shown, except the conditional judgment rendered against the garnishee upon his failure to answer the writ of garnishment, and the rendition of absolute judgment. Nothing to the contrary appearing on the face of the proceedings, every presumption of the correctness of the trial court’s rulings must be indulged on appeal. This rule of practice is too firmly engrafted upon our jurisprudence to need the citation of authorities. While the judgment may not positively set forth all the formalities of judgments rendered, still its recitals are sufficient to warrant the presumption that all the necessary steps were taken prior to the rendition of the absolute judgment, and that the proceedings were all regular. The judgment is affirmed.