Jerome Howe, Garnishee, v. Forrest B. Meikle, for use, etc.

1. Garnishment—Amount of the Conditional Judgment Can Not he Increased.—Under the provisions of Section 8, Chapter 63, of Revised Statutes, a court having entered a conditional judgment for a certain amount, can not, at a later day, render judgment for a greater sum than the amount of such conditional judgment.

Garnishment.—Error to the Circuit Court of Marshall County; the Hon. Thomas M. Shaw, Judge, presiding.

Heard in this court at' the April term, 1901,

Reversed and remanded.

Opinion filed July 12, 1901.

Barnes & Magoon, attorneys for plaintiff in error.

John II. Jackson and McDougall & Chapman, attorneys for. defendant in error.

Mr. Justice Waterman

delivered the opinion of the court.

It appears from the record in this cause, that on the first day of May, 1900, there was filed in the Circuit Court of Marshall County an affidavit setting forth that Moses Wachtell and Louis Weihl, at the January term of said court, in the year 1896, recovered a judgment against one Forrest B. Meikel for $472.73; that execution had been issued thereon and returned “no property found;” that Meikel had no property in his possession to the knowledge of said Wachtell and Weihl, and that the affiant had reason to believe that Jerome Howe was indebted to said Meikel. Thereupon and summons reciting the recovery of *285said judgment as aforesaid, was issued against the said Jerome Howe, which was duly served on him on the 2d day of May, 1900. On May 5, 1900, interrogatories to be answered by said Howe were filed, and thereafter on the 26th day of May, upon the application of the plaintiffs Wachtell and Weihl, the statement as to the amount of said judgment was changed to the sum of $472.33, and a new affidavit for garnishee process was filed, reciting the amount of said judgment in accordance with said judgment at $472.33. On the 31st day of May, 1900, a conditional judgment was rendered in said proceeding against the said Jerome Howe for the sum of $574.64 upon which a scire facias was issued, directed to the said Jerome Howe, reciting the recovery of a judgment in said court at the January term, 1896, against the said Forrest B. Meikel for $472.33, and that conditional judgment for said amount had been rendered against the said Jerome Howe as garnishee of said Forrest B. Meikel, and “this writ of scire facias" ordered to be issued, which writ was served upon the said Howe upon the 28th day of July, 1900. On the 15th day of October, 1900, in said court, said cause coming on for proceeding upon the conditional judgment thereinbefore rendered, and neither party showing cause why said conditional judgment should not be made final, judgment was rendered in behalf of the plaintiff, Forrest B. Meikel, for the use of Wachtell and Weihl, against the said Jerome Howe, for the sum of $575.64, amount of conditional judgment aforesaid, for the use aforesaid, together with his costs and charges in this behalf expended,” and it was further ordered that execution issue therefor.

Section 8 of chapter 62 of the revised statutes, after providing for the entry of a conditional judgment against a garnishee for the amount of the plaintiff’s demand or judgment against the original defendant, declares that thereupon a scire facias shall issue against such garnishee, commanding such garnishee to show cause why such judgment should not be made final, and providing further that if such garnishee, .being served with process or notified *286as required by law, shall fail to appear and make discovery in the manner aforesaid, the court shall confirm such judgment to the amount of the judgment against the original defendant, and award execution for the same, and costs.

Clearly, under this provision, the court, upon a conditional judgment for §472.33 rendered on the 10th day of September,' 1900, and a scire facias thereupon issued commanding the garnishee to show cause why final judgment should riot be entered, could not, on the 15th day of October, 1900, render judgment against the said Howe for $575.64 as the amount of said conditional judgment. The judgment is reversed and cause remanded.