161 Ga. 58 | Ga. | 1925
The Court of Appeals requested instruction from the Supreme Court upon the following question: “Will a judgment regularly entered, discharging a garnishee who has answered nothing, and where no traverse of the answer was filed and therefore no evidence was adduced, be res judicata upon an issue formed upon a traverse of an answer of the same garnishee answering nothing, subsequently filed by the same plaintiff in the same
The failure of the plaintiff, Knight, to traverse the answer of Herring & MeGehee, filed on August 4, 1920, to which answer the judgment of November 2, 1920, discharging the garnishee, was but a natural legal sequence, was tantamount to an admission of the truth of the statements contained in the garnishee’s answer. The judgment discharging the garnishee was conclusive and res adjudícala, as much so as if the garnishee, the partnership, Herring & MeGehee, had answered that it was indebted to Herring in a named amount and as if judgment had been thereupon entered against Herring & MeGehee for the amount of the admitted indebtedness. As a general principle, res adjudicata includes as well what could have been properly pleaded as what was actually pleaded in the former trial or proceeding under consideration. In the case of Roman v. Montgomery Iron Works, supra, the Supreme Court of Alabama had before it the precise question as to the-effect of failing to traverse the answer of a garnishee upon the right to thereafter traverse the answer to a second summons of garnishment sued out in the same proceeding, and held, as we do in this case,' that the failure to traverse the answer of a garnishee, who answered that he was not indebted to the debtor of the plaintiff and had no property of the defendant in his custody or possession, barred any further attempt to investigate the state of the relations between the garnishee and the plaintiff’s debtor prior to the time when the first answer was made. In delivering the opinion of the court Mr. Justice Anderson said: “The creditor makes the only issue which the law contemplates, by making the affidavit which is the institution of the suit, and which charges the garnishee with being indebted, etc., to the debtor. If the garnishee admits the charge by his answer, the plaintiff would be entitled to a judgment against him, and there would be no room to question the conclusiveness of the judgment. If he denies the indebtedness, that merely puts upon the plaintiff the burden of proving his charge, which he can do by contesting the answer, and failing to do so is no failure to present an issue, as the issue was previously presented, but is a declination on his part to prove the one and only issue involved. And a judgment rendered for the garnishee would be as conclusive as one rendered for the plaintiff, when the
The second question asked by the Court of Appeals, which is, “Can the validity of an assignment, which has been made by a debtor in fraud of his creditors, be attacked as against a stranger to the conveyance having the property in possession, in a proceeding by the creditor against the debtor, where the party in possession of the property is made garnishee, and where the assignee holding title under the assignment is not made a party to the case by the plaintiff nor vouched into court by the garnishee ?” must be answered in the negative. No rights of any person can be affected in a proceeding in which he is not a party and therefore and thereby “has no day in court.” A judgment subjecting the property which the plaintiff claims to have been fraudulently conveyed
In the brief of counsel for the plaintiff inquiry is made of this court whether we can “inquire of the ‘record’ which the clerk of the Court of Appeals is directed to send up, to discover that a traverse was in fact filed to garnishee’s answer to the first summons in garnishment; or is this court confined to the hypothetical question propounded ?” As ruled in Georgian Co. v. Jones, 154 Ga. 762 (115 S. E. 490), this court is confined in each instance to the precise questions propounded by the Court of Appeals.