The appellant moved for a rehearing; and the following opinion was filed May 10, 1882:
ObtoN, J.On denying the motion of the appellant for a reargument of this cause, I deem it proper to briefly present the views of the court in respect to the question upon which such reargument is asked. The testimony of Benjamin W. Hall, taken on a previous trial, was read as evidence on the last trial; and a part of his testimony was, that certain garnishee summonses were served upon him, and that he sent notices thereof by mail to Cartwright and Wells. Thereupon, /‘the plaintiff objected to all evidence relating to the so-called garnishee proceedings, and the pretended service of notices therein, oh the ground that the same was incompetent and immaterial, and because each of the pretended .judgments was entered without jurisdiction, and after the commencement of this action.” This objection appears to have been read in connection with this testimony of the witness Hall, and became a part pf the case made on the last •trial. At that time there was a stipulation that the original papers in said garnishee proceedings need not be produced, •and such stipulation had been withdrawn before the last trial. On the last trial there was no evidence offered in respect to said garnishee proceedings, except the docket entries of the justices in the several cases; and as to some of them the docket entries were objected to, on the grounds “ that they were incompetent and immaterial, and that the plaintiff had no notice of such proceedingsand as to others they were objected to on the same grounds, “ and on the *37further grounds that the justice had no jurisdiction of the action, nor of the defendant therein, and had no power to render judgment against the defendant.”
All of these docket entries were ruled out, presumably on these grounds. No other evidence, of record or otherwise, was offered of the garnishee proceedings, and this was the only point in respect to such proceedings before this court on the appeal. The ruling of the circuit court was sustained on' the ground that the jurisdiction of the justices in the proceedings did not appear. It is now complained and contended' that the question of jurisdiction was not raised, and was therefore waived. That objection is sufficiently answered by. the foregoing references. But, aside from this specific objeo' tion, the docket' entries were clearly moomjpetent without first showing jurisdiction, and such jurisdiction was not shown by j such entries. In the brief of the learned counsel of the re- i spondent the point was distinctly made that the proceedings, so far as sought to be shown, were void for want of jurisdiction. This point was answered in the brief of the learned counsel of the appellant as follows: “The defendant was adjudged by the justice’s court to pay the money to the creditors suing out the garnishees. The papers are all lost. There is nothing left but docket entries; nor does it matter, as we see, whether the justice’s court was right or wrong in its decision. The money was subject to garnishment.”
No objection was made, it is complained, that the court had no jurisdiction. We have seen that such objection was distinctly made, and more than once. No objection was made to the introduction of the papers in the garnishee proceedings, including the affidavit, by which only jurisdiction could be shown, because they were not offered, and there was no offer to prove their contents if lost. It would seem, that the contention of the learned counsel of the appellant arises from a misapprehension of the record, and from not remembering that the stipulation, which probably dispensed *38with the proof of the garnishee proceedings beyond the docket entries, had been withdrawn previous to the last trial.
Having thus disposed of the question upon which the motion for a reargument mainly depended, we may say, in respect to the suggestion that this court misapplied the law in regard to the liability of bailees in the decision of the case, and that the case was disposed of upon a question not argued by counsel, that our view of the case expressed in the opinion, that the real owner could reclaim his property even as against the carrier or bailee at any time before delivery to the consignee, would apply equally to a case where ' the real owner had asserted his claim before the carrier or ■bailee had delivered up the property, or answered as to his liability on garnishment. It appears that the plaintiff had asserted his individual and exclusive claim to the packages ' before the defendant had answered as garnishee. The joint notice to the plaintiff and (mother, placed in the mail, was certainly not a sufficient notice to the plaintiff personally that he should appear at the time of the answer, and inter-plead or assert his claim to the property before the justices, to discharge the defendant from liability. This, of course, is clearly obiter, because no garnishee proceedings were shown on the trial; and it is here suggested only to make it at least pi’obable that the garnishee proceedings, if proved, would have been no defense to the action.
By the Oowrt. — The motion for reargument is denied, with $25 costs.