Bruce & Fisher vs. Cook, Garnishee of Scarborough, 6 G. & J. 345

Buchanan, Ch. J., delivered the opinion of the court. This case differs from the case of Wever and Wever, vs. Baltzell and Davidson, garnishees of McCaffrey, just decided, only in this; that here, after the appearance and pleading by the garnishees, and issues joined, the attachment was quashed by the court below, on motion of the garnishees; from which judgment of the court the appeal was taken. And we can perceive nothing in the judgment to complain of, either as respects the reason assigned in the motion to quash, or the stage of the proceeding at which it was made.

The reason assigned is, that it does not appear in the attachment, that William Fisher, one of the plaintiffs, was an inhabitant, or resident, of any part of the United States, or a citizen thereof, or of any one of the United States. We have seen in the cause just decided, that to give jurisdiction to the court, it should have so appeared in the affidavit that was the foundation of the warrant, and writ of attachment, which all taken together, form the cause of attachment.

The judgment is general, and does not purport to be founded upon the absence of a proper description of William Fisher, in the writ of attachment, and must be taken to have been founded on the want of jurisdiction for the defect apparent in the proceedings. The objection substantially, was to the jurisdiction, for the want of a sufficient description of one of the plaintiffs, in the case of attachment made by the proceedings, and not merely in the writ of attachment.

And to say, that this court must be confined by the terms of the attachment used in the reason assigned in the motion to quash, to the writ of attachment, and cannot look beyond it, when it appears by the record, that a sufficient description according to the provisions of the act of 1825, ch. 114, is not given in the affidavit, (where it should properly appear) and therefore, that the court below had not jurisdiction of the case, would be to sustain an objection rather too attenuated. The other objection, that the motion to quash was made after issues joined, rests we think on no better foundation.

The garnishees need not have pleaded as they did, but might have availed themselves of the want of jurisdiction by demurrer. It would have been a fatal objection after verdict, on a motion in arrest ofjudgmeit. They might have taken advantage of it, if a jury had been sworn, by a prayer for the instruction of the court; or after verdict and judgment against them, without raising the objection below, it might on appeal or writ of error, have been assigned as error here, and this court would have taken notice of and sustained it. In Yerby vs.

Lackland, 6 Harr. and Johns. 446, the garnishees pleaded nulla bona, and under instructions given by the court, to which exceptions were taken, they obtained a verdict and judgment. No objection was raised to the jurisdiction in the court below; and on an appeal to this court, by the plaintiff, it appearing from the record, that he had failed to show himself to be of that description of persons who had a right, under the provisions of the act of 1795, ch. 56, to sue out an attachment, the judgment for that reason was affirmed, without any examination of the questions raised in the bills of exceptions.

Why then in this case should the court, merely because issues had been joined between the parlies, have overruled the motion to quash the attachment, and suffered the mere forms of a trial to have been gone through, seeing that it had no jurisdiction in the cause ? It was the right of the court on perceiving its want of jurisdiction at any stage of the proceedings, before the swearing of a jury, to entertain a motion to quash the attachment, and arrest the further progress of the cause.

To have rejected the motion, and proceeded with the trial of the cause on the issues joined, would have been to exercise a jurisdiction, that it knew it was not invested with, and could not be sustained in this court, and for want of which, that court could not have given a valid judgment on a verdict for the plaintiff. JUDGMENT AHTEMID.