Atlanta & West Point Railroad v. Farmers' Exchange

6 Ga. App. 405 | Ga. Ct. App. | 1909

Russell, J.

(After stating the foregoing facts.) In the petition for certiorari there are several assignments of error which are not insisted upon here, no reference being made to them in the brief. The fact that the justice of the peace entered judgment against the garnishees without the introduction of any evidence, cither in support of the answer or the traverse thereto, would be of no moment in this case, even if the assignment of error upon that ground had been insisted upon before us. The garnishees c ould not complain of the fact that judgment was entered upon the statements contained in their own answers. In these answers they admitted that they were indebted to the defendant in fi. fa. upon a judgment. It is true that according to their answers the judgment was based upon a tort, but the damages had been liquidated and the amount of their indebtedness was fixed by the judgment. The amount of the judgment was subject to garnishment. Lee v. Louisville & Nashville R. Co., 2 Ga. App. 337 (58 S. E. 520). Whether the judge of the superior court erred in overruling the certiorari depends', therefore, wholly upon whether the trial justice erred in refusing to dismiss the proceedings in garnishment upon the grounds stated in the motion to dismiss.

2. It was not necessary that the fi. fa. should be backed. Section 4160 of the Civil Code, which requires the backing of fi. fas. where the defendant shall remove out of the district after he is summoned or after judgment is rendered against him, has no application in this ease. The backing of the fi. fa. is required in order to effect a levy on either personal or real property, or to prevent dormancy of the execution, by enabling the constable, upon failure to find property upon which to levy, to make an entry of nulla bona. We do not really see that the fi. fa. was pertinent in the case, and it certainly cut no figure injurious to the garnishees, after their admission that the plaintiff in garnishment was the plaintiff in a valid subsisting judgment properly appearing upon the docket of the court, as alleged in the garnishment affidavit.

3. Sections 4715 and 4716 of the Civil Code each prescribe methods by which assets in the hands of a prospective garnishee who resides in a different county from the debtor may be reached. One of the purposes of the provisions of each section, as pointed out by Chief Justice Bleckley in West v. Harvey, 81 Ga. 712 (8 S. E. 450), is “to show a connection between the garnishment and the proceedings elsewhere in the main case.” See Civil Code, §§4549, 4550, 4715, 4716, 4717. The plaintiff in the present case proceeded under the provisions of §4716. The garnishing judgment creditor did all that it was required by law to do. It made the required affidavit and bond. It then became the duty of the magistrate to make out the certified copy and deliver it to the constable, and the duty of the constable to transmit it to the justice’s court of DeKalb county, where the judgment was originally rendered. If the garnishing creditor should be held responsible in any ease for the dereliction of officers charged with the performance of a duty, we do not think such a rule should be applied under the facts of this case; for the reason that before judgment was entered against the garnishees the certified copy was filed in the court which rendered the main judgment, and thus the connection between the proceedings in garnishment and “the mam case” was evidenced. The law does not fix a time within which the certified affidavit and bond shall be transmitted; and so far as Ihe rights of any parties at interest are concerned, it wonld seem that none of them would be prejudiced if, before the rendition of the judgment against the garnishee, the certified bond and affidavit were in the court in which the judgment was obtained.

Judgment affirmed.