The Louisville, New Albany And Chicago Railway Company v. Lake

• Decision Date: 30 November 1892
• Docket Number: 601
• Citation: 32 N.E. 590,5 Ind.App. 450
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. LAKE
• Court: Indiana Appellate Court

32 N.E. 590

5 Ind.App. 450

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. LAKE

No. 601

Court of Appeals of Indiana

November 30, 1892

From the Lawrence Circuit Court.

Judgment affirmed.

E. C Field and W. S. Kinnan, for appellant.

J. E Boruff, for appellee.

OPINION

BLACK, J.

The appellee brought his action against the appellant before a justice of the peace, to recover for work and labor performed by the plaintiff for the defendant upon its road-bed and bridges.

Before the justice the appellee recovered judgment. The appellant appealed to the court below, and there filed an answer in two paragraphs, the first being the general denial. In the second paragraph the appellant showed the rendition of a judgment against it as garnishee in a proceeding in attachment against the appellee before a justice of the peace in the city of Chicago, Illinois, and payment into the court of the justice by the appellant of the amount so adjudged. There was a reply in denial, and upon trial by the court the finding was in favor of the appellee.

The appellant's motion for a new trial was overruled, and the question as to the sufficiency of the evidence is the only one before us.

Besides other evidence, certain statutes of the State of Illinois and a transcript of the proceedings and papers in the cause before the justice of the peace in Chicago were introduced. Among these statutes was one providing that "writs of attachment may be granted * * by justices of the peace * * upon filing with the justice a sufficient affidavit and bond to the defendant with sufficient security, to be approved by the justice, in a penalty in at least double the amount of the plaintiff's claim, conditioned," etc.

The affidavit in attachment stated as the ground of attachment that the appellee was not a resident of the State of Illinois; and the oral evidence showed that he was a resident of this State. There was no appearance by or for him before the justice in Chicago.

The attachment bond was "in the penal sum of dollars current money of the United States."

Where in such an ex parte proceeding in attachment against a non-resident, who makes no appearance, judgment is rendered against him without jurisdiction, a garnishee will not be protected by the judgment rendered against himself or by his payment thereof, when he is subsequently sued by the principal defendant. The garnishee, for his own protection, must...