Gunn v. Gunn

103 Ga. 607 | Ga. | 1898

Lewis, J.

There can be no question that where a remedy at law is not sufficiently adequate to secure the rights of a creditor who is seeking by garnishment to subject a fund to his debt, he has the right to file, in aid of the statutory proceedings, a petition praying for equitable relief. Kimbrough v. Orr Shoe Co., 98 Ga. 537., Indeed, the right to the relief sought by .the ancillary petition in this case was not denied. The effect of filing such a petition is not necessarily to postpone the trial of the case to the second term of the court following the filing of the petition. Should an equitable petition be filed, for instance, in aid of a levy or claim, the entire case made by such petition and the proceedings at law would be triable at the first term, unless the pleadings set up some matter requiring a postponement. The term at which a case is in order for trial must be governed by the law applicable to the return of the original proceeding in court. So far as the time for trial is concerned, an ancillary petition in aid of the original suit is nothing more in effect than an amendment to the original cause of action. In this case the equitable petition had fulfilled its office by bringing into court the fund sought to be subjected to plaintiff's debt. It is true the money was paid to the clerk of the court by consent of the parties, but this consent was had after the appointment of a receiver, whose duty it was to collect the fund and hold the same subject to the order of the court; and the effect of the agreement was simply to substitute the cleric for such receiver in order to save expense. The fact that the petition prayed for process can not change the rule. Such a prayer was really unnecessary, and did not convert the entire case into an original proceeding returnable to the next term and triable at the second term of the court. When, therefore, the case was called in its order for trial at the first term of the court after the garnishee had made his answer, there being no traverse to the sam.e and no reason assigned for a continuance, there was manifestly no error in finally determining the issues involved.

The only objection to the granting of the order complained of in this case was, that “there was no pleading then in court to authorize the same.” The amendment to the petition especially prayed that the fund in court be applied to plaintiff’s judgment against the defendant. There was no demurrer to the petition, no answer filed thereto, and no reason urged why the fund was not subject to the judgment and should not be directly applied to its payment. In the case of Kimbrough v. Orr Shoe Co., above cited, the petition in aid of the garnishment proceedings was never served upon the debtor, and he was not given notice of the hearing. He was present in court when the judgment was passed, and afterwards moved to vacate the order. Notwithstanding the irregularity in the failure to serve, this court held that, no valid reason being shown for rescinding the order, the court below did not err in refusing to set it aside.

Judgment affirmed.

All the Justices concurring.