Upon the plaintiff’s motion, a re-hearing was *583granted; and an order was made by this court directing the-clerk of the circuit court to make return of a certain affidavit of the plaintiff on file in said circuit court, and which had been used at the hearing of the motion at the circuit. After a re-argument, the appeal was finally disposed of at the June term, 1871, all the justices who then constituted the court, concurring.
Dixon, C. J.The reasons for directing a re-argument of this case appear in the opinion on the second appeal, filed May 8th, 1871. * The affidavits of the defendants are defective in not specifying the particular property held and owned by them and liable to execution, according to the rule laid down -in that opinion. For this reason the order appealed from must be affirmed, unless, as contended by counsel for the defendants, it should be reversed for want of an affidavit by-the plaintiff, or in his behalf, showing the indebtedness of the defendants to him, and the amount over an/l above all set-offs, which indebtedness is denied by the defendants in théir affidavits; or, if that ground of reversal does not exist, then, unless it should be reversed as to that part of it refusing the application of the defendants to have the money in the hands of the garnishees paid into court, as is also contended by the same counsel.
Whether either of these grounds of objection or reversal exists, depends upon the point whether the affidavit of the plaintiff brought up to this court by supplementary return from the clerk of the court below, made in pursuance of an order of this court, is part of the record in this case, and upon the further point whether the record shows that such affidavit was used on the hearing of the motion in that court. Counsel for the defendants assumes or insists that the *584affidavit is no part of the record, or, if it is, that it does not appear to have been used at the argument below. The affidavit is clearly part of the record, returned and certified by the clerk as such; and the certificate of the clerk, with the order of this court in pursuance of which it was made, distinctly shows that the affidavit was used at the hearing below. The order of this court recited that it was shown that the return already made was “ defective in not returning to this court the affidavit of said respondent read on the hearing of the motion,” and required the clerk of the court below to make immediate return of the affidavit “ on file below, read and used on the hearing of the motion.” To this the clerk of that court certifies and returns, “ in pursuance of the order,” a copy of which is annexed, “ a certain affidavit therein referred to, as the same was filed in his office on the 4th day of February, A/D. 1869.” He further certifies, that “ the affidavit referred to in the annexed order ” did not come into his possession until the 4th day of February, 1869. This is a sufficient official statement or certificate, in the absence of any evidence to the contrary, to show that the affidavit was used on the hearing of the motion, although it does not appear to have been filed with the clerk until some considerable time after the motion was heard and decided. The affidavit, regularly entitled in the action, was made, sworn and subscribed on the 6th day of June, 1868, and the motion was heard before the judge at chambers on the 17th, and afterwards in open court on the 29th of the same month. ,
The affidavit being thus part of the record, and appearing to have- been used at the hearing of the motion, the objections now taken are entirely obviated. In the affidavit the plaintiff distinctly makes oath to the indebtedness of the defendants, and its amount over and above all set-offs, which is a compliance with the rule in that respect.
*585And the affidavit furthermore shows that the moneys in the hands of the garnishees have in fact been paid over to the defendant Noonan, upon security or indemnity given by him therefor; so that in reality the defendants have suffered nothing by the refusal of the court to make an order requiring the garnishees to pay or deposit the same in court, and are not aggrieved thereby.
The position of counsel for the defendants, that, in analogy to the practice in certain cases, like that of Allison v. Rheam, 3 S. & R. 189, the plaintiff in the original suit should be required to apply to and ask the defendants therein whether they have sufficient property liable to execution to satisfy his demand, and in what it consists, and where situated, before he can be allowed to resort to the process of garnishment given by the statute, is rejected as impracticable and unsound in cases like the present.
The order appealed from must, for these reasons, in addition to those formerly given, he affirmed, but not ■ without a direction like that formerly given, namely, that it be without prejudice to the right of the defendants to proceed in tire court below, by a new motion or otherwise, as they may be advised, to obtain a dismissal of the garnishee proceedings in accordance with the practice established on these appeals.
By the Court. — It is so ordered.