Flournoy & Epping v. Rutledge

73 Ga. 735 | Ga. | 1884

Blandford, Justice.

On the 14th day of January, 1884, plaintiffs in error, Flournoy <fc Epping, caused a.n attachment to issue in their favor for the sum of $260.75 against W. T. Rutledge, and had the same"-levied by service of summons of garnishment on the Merchants’ Insurance Company, of Newark, on the Insurance Ooriipany of North America, on the Western Assurance Company, andón the Orescent Insurance Company. -,

On the 7th day of March, 1884-, D. F. Wilcox, agent, filed their four separate answers, one i£>r each of the above named companies, admitting an indebtedness on the part of each company to W. T. Rutledge of tlie\sum of $433.90, which said answers were supplemented by farther answer from D. F. Wilcox, filed on the 12th day ofi May, 1884, setting forth that the facts contained in said answers were unchanged. '

On the 3d day of June, 1884, D. F. Wilcox, as agent of the Merchants’ Insurance Company, of Newark, New Jersey, filed a traverse to the return of the sheriff of his .levy of attachment, by service of summons of garnishment, in the following words, to-wit:

“ And now comes the Merchants’ Insurance Company, of Newark, N. J., the garnishee in the above stated case, and traverses and denies the following return made by J. G. Burrus, sheriff of said county, made on the writ of attachment, and also on the writ of garnishment issued in said case, in the words following, to-wit:

“ ‘ Executed the within attachment by serving a summons of garnishment on the following companies, to-wit: Merchants’ Insurance Company, of Newark, N. J.; Western Assurance Company, of Toronto, Canada; Insurance Company of North America, Philadelphia; Crescent Insurance Company, of New Orleans, by handing said summons of garnishment to D. E. Wilcox, agent of said companies at Columbus, Muscogee county, Georgia, at 10 o’clock and 30 minutes a. m., January 14th, 1884. J. G. Burrus, Sheriff.’

And also the following return made by J. G. Burrus, sheriff, to-wit:

“ ‘ Executed the within by serving a summons of garnishment on the following companies, to-wit: Merchants’ Insurance Company, of Newark, N. J.; Western Assurance Company, of Toronto, Canada; Insurance Company of North America, Philadelphia; Crescent Insurance Company, of New Orleans, by handing said summons of garnishment to D. F. Wilcox, agent of said companies at Columbus, Muscogee county, Georgia, 10 o’clock and 30 minutes a. at., January 14th, 1884. . J. G. Burrus, Sheriff.’

“And this respondent says that the saia returns are not true in this: that the said J. G. Burrus, sheriff, served but one summons of garnishment in said case upon the said Wilcox, which is in the following words and figures, to-wit:

“ ‘ State of Georgia, Muscogee County: ■

‘ To D. E. Wilcox, agent for Merchants’ Insurance Company, of ' Newark, Insurance Company of North America, Western Assurance Company, Crescent Insurance Company: You are hereby required . personally to attend at the superior court, to be held for Muscogee - county, on the 2d Monday of May next, to answer upon oath, in gar- - nishment, at the instance of Flournoy & Epping, against William T. . Butledge, what said insurance companies named above are indebted ‘ to the said William T. Butledge, or what property or effects you have ■ in your hands belonging to the defendant-, and also what yon have ■ become indebted to the defendant, or what property and effects of . defendant yon have received since the time of the service hereof. 'This 14th day of January, 1884.

M. O. Wootten, N. P. & Ex-off. J. P. [L. S.] ’

“ And this respondent says that neither said attachment nor said garnishment were served otherwise, or in any other manner, than by tho service of said summons o£ garnishment as above set forth by said J. G. Burrus, sheriff, upon the said D. F. Wilcox, and that the service of said summons, as aforesaid, is tho service set forth and described by said sheriff in his said return.

“And this respondent says that the service of said summons, as aforesaid, on said D. F. Wilcox was not and is not a service of summons of garnishment upon this respondent, and of this it puts itself upon the county.

Goetchius & Chappell, Attys. for the Garnishee.

“ Georgia, Muscogee County:

“D. F. Wilcox, agent for the Merchants’’ Insurance Company, of Newark, KT. J., comes before me, and, being duly sworn, says that the facts set forth in the foregoing traverse are true as therein stated.

Sworn to and subscribed before me this-day of May, 1884.

“D. F. Wilcox.”

To which said traverse plaintiffs in error, Flournoy & Epping, filed their demurrer, which, after argument, was overruled by the court, to which plaintiff excepted and assign as error No. 1.

1. For myself, I think that the process, the summons of garnishment in this case, was sufficient, notwithstanding it embraced several parties who are foreign insurance companies, it being directed to one person who is agent for all the companies. It is not joint as to these companies, but several. They are required severally to answer the garnishment, and I cannot see how they can be considered ■as being sued jointly because they are embraced in the •same process. 46 Ga., 606.

2. However this may be, we are all agreed that the defendant in error, after it had appeared and filed an answer, admitted indebtedness to the defendant in attachment, and offered and tendered the’ money in court, in discharge ■of its liability under the garnishment, was too late to tender an issue and traverse as to the legality of the summons of garnishment or return of the sheriff. Appearance and pleading waived all objections as to the process and return of the officer. Code, §§3335 ; 59 Ga., 463; 41 Id., 202; 51 Id., 114; 56 Id., 51, 195, 517; 58 Id., 417; 56 Id., 394; 25 Id., 646. These authorities fully sustain this position.

Judgment reversed.