#### Marie Herch, Defendant in Error, v. Carlo Lazzarini, Plaintiff in Error. Charles P. Molthrop, Garnishee, Defendant in Error.

Gen. No. 19,765.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed April 28, 1915.

Statement of the Case.

This is an action in attachment instituted in the Municipal Court by Marie Herch against Carlo Lazzarini, wherein Charles P. Molthrop was summoned *463as garnishee. Judgment was entered in favor of the plaintiff ag'ainst Carlo Lazzarini for $352.23. Carlo Lazzarini then filed a motion to vacate and set aside said judgment and for leave to file his affidavit of defense within five days. The motion was overruled by the court and the defendant filed a second motion setting forth the matters contained in the first motion more in detail, which was also overruled. To reverse the judgment in favor of the plaintiff, the defendant brings error.

Abstract of the Decision.

1. Attachment, § 98 * —when affidavit not void. A defective affidavit for attachment which is not objected to in the lower court, if amendable in such court, is not void.

2. Attachment, § 105*—when affidavit for attachment cannot he questioned on appeal. The sufficiency of an affidavit for attachment cannot be questioned for the first time in the Appellate Court.

3. Judgment, § 142*—when affidavit to vacate insufficient. It is not error for the court to overrule a motion to vacate and set aside a judgment and for leave to defend upon the merits when the affidavit in support of the same fails to state any fact in support of the motion which should have moved the court to grant the same.

4. Judgment, § 135*—when second motion to vacate properly denied. A party to an action cannot make a second motion to vacate and set aside a judgment when the matters set forth in his affidavit in support of such motion were all within his knowledge at the time he made his affidavit in support of his first motion to have such judgment vacated and set aside.

5. Appeal and errob, § 1319*—when evidence presumed sufficient. In the absence of a certificate by the trial judge that the bill of *464exceptions contains all the evidence offered and received upon the hearing of certain motions of the defendant, the presumption may properly be indulged, in support of the action of the court that the court had before it other and sufficient evidence, such as the oral testimony of witnesses.

*463Alberto N. Gualano and George Remus, for plaintiff in error.

No appearance for defendant in error.

*

See Illinois Notes Digest, Vols. XI- to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Baume

delivered the opinion of the court.

*4646. Garnishment, § 105 * —what is proper form of judgment against garnishee. A judgment in attachment in favor of the plaintiff against the garnishee is improper; such judgment should be for the plaintiff against the garnishee for the use of the plaintiff.

7. Appeal and erbob, § 1214*—when defendant cannot object to form of judgment against garnishee. A judgment in an attachment proceeding in favor of the plaintiff against the garnishee rather than in favor of the defendant against the garnishee for the use of the' plaintiff while improper cannot be assigned as error by the defendant.