Abner M. Sessions, who sues for the use of Hamilton W. Sharp vs. John Stevens, 1 Fla. 233

Baltzem,, Justice: This is a suit institued by Sessions against Stevens,' in the Court below, on a note for $106, payable the 1st of September, 1842, to Adam Wyrick, and by him assigned to plaintiff.

The defence principally relied upon was, that “ defendant was served with a process of garnishment issued from the Superior Court of Jefferson county, upon a judgment and execution issued out of said court, in which James Branon was plaintiff, and said Wyrick was defendant, to answer concerning his indebtedness to said Wyrick, according to law, and upon such answer at November Term, 1844, of said court, judgment was rendered against said defendant for the amount due on the note, to wit, the sum of $71, and $3 94 costs, which record he brings into court, &c.” To this there was a replication'“that no such judgment as mentioned in said defendant’s plea, was obtained in favor of James Branon at said November Term, 1844.” The Court below directed the jury that plaintiff was not entitled to recover, and the propriety of this instruction is now presented to the consideration of this Court by the assignment of errors.

The instruction would seem to follow as a consequence from the state of the pleadings, and the successful maintenance by defendant of his plea of judgment recovered. A judgment against a garnishee, pri-ma facie, is a bar to a subsequent recovery of the same .note in the hands of any one.

The law in such cases constitutes the execution creditor an assignee of the note from the time of the service of the notice of garnishment, and entitles him to judgment as if the note had been regularly assigned to him by act of the party, otherwise there would be the strange and extraordinary anomaly of a tribunal of justice committing

an act of injustice, by compelling a party to pay twice on the same engagement. Such judgment is the action of a court of competent and general jurisdiction, and is entitled to all the attributes of an adjudication upon the subject matter. By it, the note in legal contemplation, becomes extinguished, loses its identity and character-, and ceases to be the subject of future action. “It is evidence not only of the judgment, but of the right which it has decided.” 3 Peters’ Cir. Ct. Reps. 74. “A judgment in its-nature concludes the subject in which it is rendered, and pronounces the law of the case.

It puts an end to all enquiries into the fact, by deciding it.” 3 Peters’ Reps. 204, 205. If the plaintiff, instead of taking issue on the plea as to the existence of the judgment, had replied, that he was a bona fide holder of the note before service of the notice of garnishment, a different case might have been presented. 3 Pick. 67. But this was not done, and it is questionable whether such evidence was admissible on the trial. Yet the evidence shows the note to have been assigned after service of the notice. The assignment of the note bears date the year it became due.

Omitting the day and the month, a suspicious circumstance, and the proof on the part of the defendant, was that Wyrick, the original holder in March, 1843, (the notice being served in February preceding,) asked payment of Stevens of the note. Stevens said he had been garnisheed. Wyrick asked for another note. Wyrick had it, and showed it to Stevens.” The plaintiff did not prove when or how he obtained the note. Under this state oí facts, we concur in the opinion with the Circuit Court as to the propriety of the instruction given.

It was objected that the notice of garnishment was illegal, there not being a return of “ no property” on the execution, which is made a pre-requisite by the statute to the issuing of notice of garnishment. That there was an irregularity in this respect, does not admit of doubt, and if the application had been made to the court rendering the judgment to set aside the notice, or objection had been made to the answer of the garnishee, the court would probably have quashed it, or excused him from answer. In case of overruling his objections, the party might have appealed, or had his writ of error.

But this is his privilege, and he may waive it. By declining this course, he is presumed to have assented to it, nor is he or his assignee permitted to disturb the judgment afterward in another suit, presenting the question in a collateral manner. These principles will be found to be asserted in repeated decisions of the Supreme Court of the United States.

Thus “ a court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in its proceedings the facts and evidence on which it is rendered, whose record is absolute verity not to be impugned by averment or proof to the contrary, is of the description of courts whose judgments are conclusive if not removed to an appellate court. There can be no judicial inspection behind the judgment, save by appellate power.” Voorhees vs. Bank U. S. 10 Peters’ Rep. 479. Grignon’s Lessees vs. Astor, 2 How. 343.

Considering this view of the subject conclusive, we have not deemed it necessary to notice the other points in the case ; being fully satisfied that the judgment should be affirmed — which is decreed accordingly.