[Malone v. Escambia County.] and medical attention to those who are sick, who are unable to provide them for themselves." (Code of 1896, § 4953). These two sections in their present form, as stated above, have been in the last two Codes, at the time of their enactment, and the latter section, as to medicines and medical attendance, has been in existence since 1855-56. Their continuance in these Codes, indicates an indisposition on the part of the legislature to repeal either, but to give them both effect. When reading the two sections together, taking into consideration the history of their respective enactments and continuance in the Codes, it cannot be doubted that the duty imposed by them, may be performed either by the sheriff or the probate judge. It may be, that it would be better, ordinarily, for the sheriff to comply with the provisions of the first named section, and allow the judge of probate to act in the premises; but if he should not do so, for any reason, the liability of the county for medicines and medical attendance provided by him, under circumstances allowed by the latter section, would be no less binding on the county than when supplied by the probate judge under the former section. Sections 4535-4555 of the Criminal Code of 1886 (Code of 1896, §§ 4946-4966), having reference to imprisonment in the county jail, prescribe that the sheriff has the legal custody and charge of the jail and of all prisoners committed thereto (except as otherwise provided by law), and may appoint a jailer, for whose acts he is responsible, and also what persons may be confined in jail; and in the section above referred to-1471-under which the probate judge is required to employ a physician and furnish medicines to indigent persons, the requirement is, "to any insolvent person confined in jail," etc. It is plain that the statutes make provision only for prisoners who have been lawfully committed to and are confined in jail, or in some other place in the stead of the jail, when prisoners are removed on account of fire or ill health, under the provisions of 4544 and 4545 of the Code. A fifth count was added by way of amendment. To the complaint as a whole, as appears from the judgment entry, the demurrer was interposed, on grounds among others, that the several counts in the complaint fail to [Edwards v. Nordholm.] state that the man, Tom Dower, was confined in jail on a criminal charge at the time the services were rendered to him; and that it appears on the face of the complaint, that the plaintiff has no cause of action against the county for the services rendered by plaintiff. When suit is brought under either of said sections, the complaint should show that the services were rendered or medicines furnished to a prisoner in jail, and that he was unable to provide such services and medicines for himself, or was in a destitute condition. Without such averment, it would not appear that it contained any cause of action against the county. The demurrer was well sustained. The plaintiff declined to plead further, and judgment was rendered in favor of defendant. In this there was no error. Affirmed. Edwards v. Nordholm. Garnishment Proceedings. 1. Garnishment proceedings; appeal by defendant from judgment in main suit does not affect judgment in a garnishment proceeding.—Where a plaintiff recovers a judgment in the court of a justice of the peace against a defendant, and also against the garnishee in a garnishment proceeding, which is ancillary to the main suit, an appeal to the circuit court by the defendant from the judgment against him does not affect the judgment rendered by the justice against the garnishee, which judgment may still be enforced by the plaintiff, if he recovers judgment on the appeal. APPEAL from the Circuit Court of Jefferson. Appellee, S. Nordholm, sued one E. P. Foley in 1891 in the justice court of W. T. Poe. Appellee recovered judgment against Foley. Appellee also sued out garnishment proceedings against G. B. Edwards, the appellant in this case, and obtained a judgment against Edwards on his answer of indebtedness. Foley then took up the case of Nordholm v. Foley on certiorari to the circuit court, but no mention was made in the certiorari proceedings of the judgment against Edwards as gar [Edwards v. Nordholm.] nishee. The cause was entered on the docket of the circuit court and tried as the case of S. Nordholm v. E. P. Foley, and judgment was rendered against Foley and the sureties on the certiorari bond. Upon this judgment execution was issued and returned "No property found." Plaintiffs then had scire facias issued to Edwards to show cause why execution should not issue on the judgment in Poe's court against him, Edwards; no execution having been issued within six months from the rendition of said judgment. This scire facias was made returnable before C. J. Martin, the justice of the peace who succeeded Poe in said office. Edwards appeared and pleaded a release given to him by W. T. Poe, which said release was given by Poe after the final judgment had been obtained against Edwards, said release being given by Poe upon the removal of the original case to the circuit court; but this release was without the authority, knowledge or consent of plaintiff or his attorney. The justice of the peace held that the release was a good defense, and discharged said Edwards. Thereupon, appellee appealed the case to the circuit court. In the circuit court plaintiff regarded the proceeding upon the scire facias as a suit upon judgment, and filed a complaint in the circuit court upon said judgment. The cause was tried by the court without the intervention of a jury upon an agreed statement of facts which were substantially as set forth above; and judgment was rendered for the plaintiff. From this judgment the garnishee appeals, and assigns the rendition thereof as error. A. LATADY, for appellant.-The removal of the case of Nordholm v. Foley to the circuit court, supersedeas bond being given, destroyed the judgment in the justice court against Foley, and with that judgment was destroyed the judgment rendered against appellant at the instance of the suit in the justice court.—Abraham v. Alford, 64 Ala. 281; Harsh v. Heflin, 76 Ala. 499. W. K. TERRY, contra.-Taking the case of Nordholm v. Foley to the circuit court by certiorari without mention of the case of Nordholm v. Edwards, the garnishee did not take up said case of Nordholm v. Edwards, which was, to all intents and purposes, a different suit.—Cross v. Spillman, 93 Ala. 170. [Edwards v. Nordholm.] COLEMAN, J.-Nordholm, the appellee, recovered judgment in the justice's court. Pending the existence of this judgment, he recovered judgment against Edwards as garnishee. After the rendition of the judg ment on the garnishment, the defendant debtor gave bond and appealed the case against him. Neither the defendant debtor nor the garnishee appealed the judgment in the garnishment case. On the appeal from the justice's court, the plaintiff again recovered judgment against the defendant debtor. The simple question is, what effect did the appeal of the judgment against the debtor by the debtor, have upon the garnishment case? It is contended that the execution of the appeal bond and the appeal vacated and annulled the garnishment judgment; this upon the ground that the garnishment judgment cannot stand, except upon a judgment against the main defendant, and as the trial in the circuit court upon the appeal is de novo, and the judgment rendered is a new judgment, and not an affirmance in any sense of the judgment in the justice's court, all the garnishment proceedings must fall. Under this rule, a plaintiff who may rightfully sue out an attachment or garishment process returnable to a justice's court, because of an erroneous decision by a justice of the peace, would be compelled to lose his attachment or garnishment security, although his claim be established and judgment rendered in his favor on the appeal. The consequences in the one case demonstrates the error of the argument and conclusion in the other. While garnishment proceedings are ancillary to the main suit, when a judgment has been legally rendered against the garnishee, it is in many respects independent of the judgment in the main case. It may be appealed from by either the garnishee or the defendant debtor without appealing the main case, and if neither appeal, both will be held to have waived any error that may have intervened in its rendition. A payment wholly or in part by the judgment debtor, furnishes the ground pro tanto for enjoining the enforcement of the garnishment debt, just as in cases where there are separate judgments against a principal and surety. The garnishment judgment is so far ancillary that a supersedeas of the main judgment has the effect to suspend the right to enforce the garnishment judgment. The mere fact, that [Edwards v. Nordholm.] by statute on appeal from a justice's court of the main case, the trial is de novo, does not ipso facto destroy the garnishment judgment. During the pendency of the appeal of the main case by reason of the ancillary character of the garnishment, that proceeding is suspended until the termination of the main case by final judgment. If the defendant succeeds in defeating the plaintiff's claim on appeal, that would be ground for enjoining the collection of the garnishment, or to authorize a certiorari to the justice's court in which the judgment on the garnishment was rendered. Section 3406 of the Code of 1886, under the subject of appeals from justices of the peace, provides that, "No attachment can be quashed or dismissed in the appellate court for any defect in the affidavit, attachment or bond, or for want of bond if the plaintiff will execute a sufficient bond." There are many decisions in our court upon questions affecting the validity of attachments. issued and returnable to justices of the peace, made in the appellate court on appeals from the justices' court. The provision in section 3406, supra, and these decisions were unnecessary and ineffectual for any purpose, if an appeal by a defendant from a justice's court annulled and destroyed attachments issued and pending and garnishment judgments rendered in justices' courts. When an attachment has been levied on personal property, returnable to a justice's court, and plaintiff recovers judgment, and on appeal to the circuit court, judgment is again rendered in favor of plaintiff, he is entitled to have the judgment certified with a procedendo to the justice's court; and he would be entitled to the same process, to have judgment, recovered before the appeal, enforced against the garnishee.-Derrett v. Alexander, 25 Ala. 265. No possible injury can result to a defendant from the application of these principles, whereas a different rule would result in injury to the plaintiff. The ruling of the circuit court was in accordance with these views, and must be affirmed. Affirmed. |