32 Ga. App. 473 | Ga. Ct. App. | 1924
Exception is taken to the refusal of the judge of the superior court to vacate an order discharging a garnishee from liability under a summons served upon it. It appears from the evidence introduced by the movant on the hearing of the motion that it had filed suit against one Head, returnable to the May term,' 1922, of Crawford superior court; that pending the suit process of garnishment was instituted in Morgan county and served upon the defendant in error bank in that county on April 11, 1922; that on April 20, 1922, Head filed in the clerk’s office of Crawford superior court a dissolution bond with a surety approved by the sheriff of that county; that judgment on the main suit was rendered in favor of the plaintiff in error against Head at the February term, 1923, of Crawford superior court; that at the March term, 1923, of Morgan superior court the defendant in error garnishee, without ever having filed its answer to the summons of garnishment, was discharged from liability thereunder, by virtue of the following order passed by the court, duly entitled in the cause: “It appearing to the court . . that a bond to dissolve
An affidavit for garnishment which contains the following language, “In person before me, justice of the peace in and for the — district, G. M., of said county, came J. A. Davis, who on oath says that he is agent for the American Agricultural Chemical Co., and as such makes this affidavit, who on oath says that George Head is indebted to the American Agricultural Chemical Co.,” setting forth the amount and other essential facts, and'which is signed “American Chemical Co. by J. A. Davis,” was not invalid. It was not the affidavit of the corporation, but of the individual making the same as agent. Bennett v. Gray, 82 Ga. 592 (2), 595 (9 S. E. 469). Nor was the garnishment bond invalid as being given without a security, where it recited “We, the American Agricultural Chemical Co., principal, and security, are bound untó George Head in the sum of one thousand dollars” (setting forth the conditions), and was signed both by the plaintiff and by an individual as follows, “American Agr. Chemical Co. (Seal) by J. A. Davis. B.. M. Wilkinson (Seal).”
Subsequent to the passage of the act of 1885 (Ga. L. 1885-6, p. 96), partly embodied in sections 5280 and 5281 of the Civil Code (1910), the liability of a defendant and his surety under á bond given to dissolve a garnishment is conditioned upon the “payment of the judgment that shall be rendered on said garnish
“Courts of record maintain full control over orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate the same, and such discretion will not be controlled by a court of review, unless manifestly abused. Such discretion, however, is not a,n arbitrary, but a legal discretion, or, as defined by Bouvier, ‘that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is not controlled by fixed rules of law.’ Therefore, where a question of law alone is properly presented to the court for decision, no discretion is involved, but the point must be decided according to the law governing it.” Van Dyke v. Van Dyke, 120 Ga. 984, 986 (48 S. E. 380). Thus, as was held in the case just cited, where the question raised by the motion to vacate affords no ground for the exercise of the court’s discretion, but presents only a pure question of law, his
Judgment reversed.