The judge below was of opinion that, although
the garnishee had denied his indebtedness, and stated that his stock had become forfeited under'the third section of the charter of the Firemen’s Insurance Company, the plaintiff was entitled to an immediate judgment, without any rule or notice to him, because his answers confessed all the facts necessary to render him liable, and did not allege that any proceedings had been taken to create the forfeiture they speak of, or that a forfeiture had been in fact declared. Whether this bo so, and whether the judgment of the 18th of January, 1844, has been' legally rendered, we are not to inquire on the present rule. The iegality and correctness of the judgment can be examined only on an appeal from it, brought before this court. The inquiry to which we must confine ourselves is, whether the suspensive appeal which had been granted in this case, was correctly set aside on the rule taken by the plaintiff. The judge states in his return, that the practice of •his court has always been, to allow a suspensive appeal when applied for, leaving to the other party to move to set it aside, if the appellant be not entitled to it. It appears to us, that even where the security offered by the appellant is found to be insufficient to *42sustain a suspensive appeal, or has not been given within the time prescribed, the order for an appeal is not to be set aside on that account, if it has been prayed for within one year after rendition of the judgment. The only effect of the party’s failure to comply with the requirements of the law for a suspensive appeal, is to render the appeal merely devolutive, and to authorize his adversary to take out his execution. In the present case, no objection was made to the appeal bond given by the garnishee ; but the ground upon which the order for a suspensive appeal appears to have been set aside is, that he suffered the time prescribed by law for taking such an appeal to elapse, his application having been made only in April, when the judgment had been signed on the 24th of January, 1844. It is said, that it is from this last mentioned date that the ten days within which a suspensive appeal is to be taken must be counted ; as, under the law of the 22d March, 1843, “relative to appeals and notices of judgments,” the garnishee was not entitled to any notice of the judgment rendered against him. The law referred to cannot, we think, be applied to a case like the present; it provides clearly for the ordinary cases, where, according to the well established rules of all our courts, suits are set down for trial on particular days, or where notices are given of all motions made, or rules taken in such suits. Parties in the ordinary course of practice cannot but be aware of the judgment rendered against them; the law presumes such knowledge, and therefore dispenses with the notices formerly required ; but this presumption of knowledge cannot exist in this instance, as the record shows, that no service was made on the garnishee of the rule by which judgment was to be demanded on his answers to the interrogatories. It was probably in consequence of this ex parte proceeding, that it was found expedient to notify him of the judgment rendered against him, although such notice was no longer necessary in ordinary cases. The right of a garnishee to appeal, so far as his own interest is concerned, cannot be questiomd. Within the legal delay after he was informed of the judgment against him, he filed his appeal-bond, and obtained an order for a suspensive appeal. Under the peculiar circumstances of this case, it appears to us, that the order *43first made should not have been set aside, and that the garnishee should have the benefit of a suspensive appeal.
Let the rule be made absolute.