Tupper v. Cassell & Baughn

Citations

• 45 Miss. 352

Syllabus

<p>1. Attachment—proof of publication for absconding debtor. —Where the only evidence that publication for the debtor was made in an attachment against an absconding debtor, is the recital in the entry of default, this is irregular.</p> <p>2. Scire facias—revivor.—Where, on return of a scire facias executed, there is no order reviving the suit against the executrix, and making her a party, it is irregular.</p> <p>3. Attachment and garnishment—interpleader—issue, how made and entered.—Where, in an attachment against an absconding debtor, a garnishee, having admitted he held money, a third party interpleads and claims the debt, the record must show that an issue was made up by the attaching creditor and the claimant, and a recital- of the clerk is not sufficient.</p> <p>i. Same —same—proper verdict of the jurv in issue between plaintiff and claimant—interpleading.—In an issue between the attaching creditor and the claimant of money in the hands of a garnishee, the jury should find who is entitled to the money, but should not give damages against the garnishee.</p> <p>5. Same—same—same—proper judgment. — If verdict be for the attaching creditor, the judgment should be that the garnishee pay to plaintiff'in attachment so much of the debt due defendant in attachment as may be necessary to satisfy plaintiff’s debt and costs.</p> <p>6. Rule 25 of supreme court.—A calculation made under rule of the court, to show excess in the verdict, considered; and, the excess so shown, included as one ground of the decision of this court, reversing the judgment of the court below.</p> <p>7. Garnishee not liable to cost of issue between creditor and third person.—A garnishee is not liable for the costs of the issue between the creditor and a third person as to who has the right to the debt in the hands of the garnishee.</p>