Leffler & Son v. Union Compress Co., 121 Ga. 40

Leffler & Son v. Union Compress Co.

121 Ga. 40 | Ga. | 1904

Fish, P. J.

A motion in arrest of judgment must he predicated upon some defect, not amendable, which appears on the. face of the record or pleadings. Civil Code, §5362. This, of course, means such a defect which appears in the record or pleadings in the case wherein the judgment is rendered. In Holbrook v. Evansville R. Co., 114 Ga. 1, it was held: “A judgment, against a garnishee, duly entered, is as to him conclusive of the proposition that the plaintiff had already obtained a valid judgment against the main debtor whose effects were sought. *44to be reached by the garnishment proceeding.” In Warlick v. Neal Loan & Banking Co., 120 Ga. 1070, it was held: “A judgment against a garnishee, duly entered, is conclusive, as to him, that every jurisdictional allegation in the affidavit to obtain garnishment is true.” See also Wingo Company v. Johnson, 119 Ga. 486. As the motion in arrest of judgment against the garnishee in the present case was based solely on the ground that the judgment against the defendant in attachment was void for reasons set out in the motion, the case turns upon the question whether such latter judgment was a part of the record in the garnishment proceedings, which culminated in a judgment against the garnishee. In view of the facts that the attachment and the summons of garnishment were both based on the same affidavit and bond, that both were returnable to and pending in the same court, and that the garnishment is a mere subsidiary process to the attachment, the question we are called upon to decide is not without difficulty. After mature reflection, however, we have reached the conclusion that the affidavit and bond upon 'which the attachment and summons of garnishment are based, the attachment, the summons of garnishment, the answer of the garnishee where one is made, and the judgment against the garnishee constitute the record and pleadings in' the garnishment' proceeding, but that the declaration in attachment and the judgement thereon are no part of, but separate and distinct from, the garnishment proceeding. This seems to be indicated by the fact that the statute (Civil Code, § 4550) requires a certified copy of the affidavit, bond, and attachment to be used in obtaining garnishment against a person who resides out of the county wherein the attachment issues. The declaration in attachment is not at all dependent upon the validity of the attachment, if the defendant is served with notice, or appears and defends, or replevies the property hpon which the attachment has been levied. In such cases the defendant in attachment remains in court, though the attachment be void and is dismissed. McAndrew v. Irish American Bank, 117 Ga. 510. So, in the present case, if the attachment were void, the plaintiffs could have recovered a valid judgment against the defendant in attachment, if the defendant had been served with notice, or had appeared and defended, or if the attachment 'was levied upon property and the defendant had replevied the *45same. In any of such cases the suit against the defendant in. attachment would be wholly independent of the garnishment, suit based upon the attachment, and as separate and distinct therefrom as the garnishment was separate and distinct from the pending suit upon which it was based in the case of Warlick v. Neal Loan & Banking Company, supra. As was said by Lumpkin, P. J., in Holbrook v. Evansville Railroad Company, supra, “ The record of that action [the main case] is, with, regard to the garnishment proceeding, merely evidentiary, and nothing more. It could, if sufficient to show the existence oí a good judgment against [the defendant in the original case],, have been introduced in evidence on the trial of the garnishment case. If not sufficient to do so, it would have been worthless, even as evidence. In no view can it be considered as part, of the pleadings, or record proper, of the garnishment proceeding.” It follows from what has been said that the court erred in sustaining the motion in arrest of the judgment against the, garnishee.

It will have been seen that the motion in arrest of judgment, was not based upon the ground that the judgment against the. garnishee was void because of alleged defects existing in the garnishment proceeding upon which the judgment against the garnishee was based. It did not seek to arrest the judgment against, the garnishee upon the ground that it waS void because the affidavit upon which both the attachment and garnishment were-predicated alleged that W. 0. Jones, as an individual, was indebted to the plaintiffs, and the bond was payable to W. 0. Jones,, while the attachment was issued against Jones Brothers and the summons of garnishment called upon the garnishee to answer-what it was indebted, etc., to Jones Brothers. Nor did it seek to, arrest it upon the ground that, from the face of the judgment, against the garnishee, it appeared that the plaintiffs had obtained a judgment, on the declaration in attachment, simply against, W. 0. Jones, instead of one against Jones Brothers, and that until, they had obtained a judgment against Jones Brothers they were not entitled to a judgment against the garnishee for what it might be indebted to that firm; but, on the contrary, the motion in arrest, sought to correct the recital in the judgment against the garnishee,, that judgment had been rendered in favor of the plaintiffs against *46W. 0. Jones, by showing that it was a mistake and the judgment •on the declaration in attachment had really been rendered against Jones Brothers. Instead of urging the invalidity of the judgment •against the garnishee for defects appearing • upon the face of the garnishment • proceeding, it attacked that judgment npon the ground that no valid judgment had been rendered against the. defendants in the main case, and thus sought to invoke an inspection of the record of the suit of the plaintiffs, by declaration in ■attachment,.against Jones Brothers; and, as we have seen, the declaration and judgment in that suit form no part of the record in the garnishment proceeding, but, in order to have been available to the garnishee for the purpose of defeating a judgment against it, should have been introduced in evidence, by way of •defense, before the judgment against the garnishee was rendered.

Judgment reversed.

All the Justices concur, except Lamar, J., •disgualified.