Dunlap v. Hooper

67 Ga. 721 | Ga. | 1880

Jackson, Chief J ustice.

Suit was brought to recover a debt due by Dunlap to Hooper, and summons of garnishment was served on the garnishee pendente lite. After judgment a motion was made to dismiss it on the one hand, and on the other to enter up judgment upon it. The .court denied both motions, but required plaintiff to pay the costs on the summons.

Afterwards another summons of garnishment was issued and served on the same garnishee, grounded on the liability of the garnishee as owing wages to the defendant, the former not containing any allegation of the sort. On the answer to this last service of garnishment judgment was entered against the garnishee, and a motion to dismiss the garnishment was overruled.

On'the refusal to dismiss, error is assigned.

1. There was no garnishment pending which could reach the wages the garnishee owed defendant; therefore there was no error in refusing to dismiss, on the ground of the pendency of the former garnishment. It had become inoperative. Indeed it was never operative so as to reach wages. Hence, there was no pendency of another valid suit on the same cause of action. Code, §3476.

2. If suit be instituted originally by service of garnishment in lieu of attachment, it may be that the same strictness would be required as in case of attachment; and the affidavit by counsel to the best of his knowledge and belief as to the ground of garnishment would perhaps not be sufficient, as ruled in cases of attachment in 60 Ga., 113. But where summons issues pendente lite or after judgment, the same strictness would not be required. In such cases the law is, the attorney may swear to the best of his knowledge and belief. Code, §3534.

3. That is certain which can be made certain on the face of the proceedings. Therefore, where the affidavit for summons of garnishment sets out the amount of principal and interest due up to judgment, with interest from judgment, and the term when judgment was rendered, and the judgment; itself is part of the record of the case before the court, the amount due is made sufficiently certain.

The motion to dismiss was properly overruled,we think, for these reasons, and no error other than the refusal to dismiss is assigned in the bill of exceptions.

Judgment affirmed.