<p>In error from the circuit court of Jefferson county; Hon. S. Posey, judge.</p> <p>At the December term, 1838, the Commercial Bank of Rodney, recovered judgment against Thomas A. Compton, administrator of John Ducker, deceased, for $6769, upon which an execution was issued to the June term, 1839, of said court, which was returned no property.</p> <p>On thé 2d of April, 1849, David Bone, styling himself “plaintiff in a judgment rendered in the said circuit court of Jefferson county, at the December term thereof, 1838, in favor of the Commercial Bank of Rodney, against Thomas A. Compton, administrator of the estate of John Ducket, deceased, and assigned by Thomas Freeland and John Murdock, assignees of the Commercial Bank of Rodney, to the said David Bone,” made affidavit before the clerk of said court, that the defendant, Compton, as administrator, had no visible property in his possession, upon which a levy could be made sufficient to satisfy said judgment or execution; and suggesting that' Penelope McGill and others were indebted to the estate of Ducker, prayed for writs of garnishment against them.</p> <p>On the same day, a writ of garnishment was issued by the clerk of the Jefferson circuit court, reciting the judgment rendered at the December term, 1838, in favor of the Commercial Bank of Rodney, against Compton, as administrator of Ducker, for $6769, and costs, and that, on the 29th day of January, 1849, the said Commercial Bank of Rodney, by their assignees, 'Thomas Freeland and John Murdock, assigned and transferred said judgment to David Bone; and that the said David Bone, “ the real plaintiff by virtue of said assignment and transfer, had made affidavit, &c.,” and then commanding the said Penelope McGill and others to appear at said Jefferson circuit court on the third Monday in April, 1849, to answer in what amount they were indebted to the estate of said Ducker, &c.</p> <p>This writ was executed upon Penelope McGill on the 14th of April, 1849.</p> <p>On the 18th of April, 1849, Mrs. McGill answered, that she was indebted to said estate in a sum between ten and twenty thousand dollars.</p> <p>On the 19th of April, 1849, judgment was rendered by the circuit court of Jefferson county, in favor of David Bone against Penelope McGill, for $10,000.</p> <p>From this judgment Mrs. McGill has prosecuted this writ of error, and assigned, as one of the errors, the improper rendition of the judgment in favor of Bone. To this the defendant plead, that the judgment complained of had been rendered on confession.</p> <p>insisted that the judgment was glaringly erroneous.</p> <p>1. A garnishment upon a judgment at law, is a legal remedy given by statute; it is the creattfre of the statute, and can only be issued, in the manner, and upon the terms prescribed by the statute.</p> <p>One of those terms, and it is a condition precedent, is, that before a garnishment shall issue upon a judgment, the “plaintiff in execution, his agent or attorney,” shall first make affidavit, &c. Hutch. Code, 911, § 1.</p> <p>An affidavit was made in this case by David Bone, but he was neither the plaintiff in execution, nor the agent or attorney of the plaintiff in execution.</p> <p>This garnishment, then, was void for want of authority in the clerk to issue it.</p> <p>2. Again, the garnishment was issued upon thé judgment of the Commercial Bank of Rodney, upon the affidavit and suggestion of Bone, and in his name, and for his benefit, he claiming to be the real plaintiff, by virtue of an alleged assignment. The garnishment given by the statute is but legal process. It is a substitute for an execution in cases where the defendant has no property which ah execution can reach. It is purely a legal proceeding and remedy. Judgments are not assignable so as to enable the assignee to proceed upon them at law in his own name. Wilson v. McElroy, 2 S. & M. 241; Van Houten v. JReily, 6 lb. 440 ; Beazley v. Prentiss, Op. Bk. D. 43, [ante, 97.]</p> <p>3. It cannot be said that Mrs. McGill’s answer, admitting an indebtedness, is like a confession of judgment, and that she is thereby estopped from contesting the legality of the proceeding. She has admitted no indebtedness to Bone, and has assented to no judgment in his favor. She was called upon to answer in what amount she was indebted to the estate of Ducker.</p> <p>I. This was a judgment by confession or on confession.</p> <p>On the return of the garnishment, if the garnishee desired to avail herself of the point that the assignee of the judgment against the éstate óf Ducker could not have a garnishment in his own name as assignee, she could have made the point by motion, demurrer, plea or answer. But she made a general answer, taking no exception to'the character in which the plaintiff sued, and acknowledging her indebtedness. Upon her confession, a judgment followed, precisely as it would have followed a confession of any other debt in open court. This was the judgment on confession.</p> <p>A judgment on confession shall be equal to a release of errors. Hutch. Code, S77, § 94. No writ of error shall issue to reverse any judgment rendered by confession. Ib. 931, § 4; How. & Hutch. 540, § 47. This, it seems, must be specially pleaded. Boone v. Poindexter, 12 S. & M. 647-649.</p> <p>2. The error is cured by the statute of jeofails. How. & Hutch. 591, § 11; Hutch. Code, 848, 849, § 91.</p> <p>If this is not a judgment by confession, it must be a judgment bj 11 non dicitand as the defect in these proceedings could have been taken advantage of by demurrer, the defect is cured by the judgment. Reaves v. Dennis, 6 S. & M. 89.</p> <p>3. The error is not to the prejudice of the plaintiff in error. As garnishee she is a mere stakeholder. The judgment does not affect her interest. It merely appropriates the money in her hands belonging to Ducker’s estate to the payment of the judgment of the Rodney Bank. The judgment and its transfer to Bone, are not disputed. The money is to be paid to Bone, at all events, and it can make no difference to her whether it is awarded to him in his own name, or in that of the Bank.</p>
