82 Ga. App. 429 | Ga. Ct. App. | 1950
Brenau College obtained a judgment against E. E. Mincey in the Civil Court of Fulton County, in December, 1942, for $1370.52, principal, besides interest, attorney’s fees, and costs; and an éxecution was issued upon that judgment. In 1948, Mrs. Minnie Louise Mincey, wife of E. E. Mincey, filed
On September 20, 1948, Dr. Linch, the garnishee, filed a sworn answer in the City Court of Decatur denying that he had any money or property or effects belonging to E. E. Mincey, or that, any money, property, or effects belonging to E. E. Mincey had come into his hands from the date of the service of said summons of garnishment up to the filing of the answer. Brenau College traversed the answer of the garnishee. The case proceeded to trial and a verdict was directed in favor of the garnishee. Brenau College made a motion for a new trial, which was overruled, and the exception here is to that judgment.
The contention of counsel for the defendant in error in their brief, that the motion for new trial was filed too late and for that reason is invalid and void, cannot be sustained under the record as here presented. It does not appear that this question was raised before the trial judge passed on the merits of the motion, but it was raised for the first time by counsel in their brief in this court. This question is controlled by Code § 6-805, which is as follows: “Where the judge has finally passed on the merits of a motion for a new trial and'the parties have raised no question as to the sufficiency of the approval of the grounds
It is well-settled law in this State that the defendant in a tort action is not subject to garnishment until the tort claim is reduced to judgment. It was held in Bates & Co. v. Forsyth, 69 Ga. 365 (2), that although one may have the right to bring a tort action against another, the tort-feasor is not subject to garnishment at the instance of a creditor of the injured party, and that “Garnishees are required to answer as to indebtedness and as to assets or property in hand, not as to the torts they may have committed against'the defendant in the suit”; and in Gamble v. Central R. & Bkg. Co., 80 Ga. 595 (2) (7 S. E. 315, 12 Am. St. R. 276), it was held that “The defendant in an action for a tort is not subject to garnishment till final judgment is recovered. A garnishment issued and served after a first verdict for the plaintiff in the action, which verdict is subsequently set aside and a new trial granted, and answered before a' second trial is had, the answer denying any indebtedness, seizes nothing and takes no lien on the final recovery.” Also, see Southern R. Co. v. Hodgson Bros. Co., 148 Ga. 851 (2) (98 S. E. 541), and Curtis v. Bailey, 51 Ga. App. 119 (3) (179 S. E. 633), to the same effect.
As above stated, Brenau College sought to ' garnish the tort claim of E. E. Mincey against Dr. A. 0. Linch. The undisputed evidence shows that Mincey did not recover in that suit, but that a verdict and judgment were rendered therein in favor of Dr. Linch, and that E. E. Mincey received nothing from Dr. Linch or anyone else as a result of said suit. The uncontroverted ■evidence further showed that the claim of Mrs. Louise Mincey against Dr. Linch was settled for $2000 and her tort action was ■dismissed, and that E. E. Mincey did not receive any part of the money that was paid to Mrs. Mincey in settlement of her .suit.
Under the facts of this case and the law applicable thereto, the trial judge did not err in overruling the plaintiff in error’s
Judgment affirmed.
