2 Ga. App. 750 | Ga. Ct. App. | 1907
In 1905 the National Lumber Company obtained a judgment against E. W. Turner, in the city court of Baxley, for $308.52. On March 6, 1906, the lumber companjr sued out-process of garnishment before the judge of the city court of Baxley and had summons of garnishment served upon E. W. Turner, as guardian of Frances Virginia Turner, deceased, calling upon him to answer what amount he owed the defendant, E. W. Turner, as an individual. The garnishment was made returnable to-the April term, 1906, of the city court of Baxlejr, and service was perfected on E. W. Turner, guardian, the garnishee, on March 6, 1906. The affidavit upon which the process of garnishment issued was as follows: “Georgia, Appling County. In person before the undersigned officer, authorized to issue process of gar
We think the judgment of the judge of the city court of Baxley was right. The plaintiff in error insists that the garnishment proceedings and the judgment based therecn and the fi. fa. issued upon the judgment, all admitted in evidence, show a valid, legal,
The garnishee fails to answer a garnishment at his peril, but he is not required to answer a void process of garnishment, and therefore, in this case, the fact that the garnishee failed to make answer was of no importance and adds nothing to the authority of the court or its power to enter judgment against the garnishee. Unless the affidavit made to obtain process of garnishment conferred jurisdiction upon the court rendering the judgment, the judgment was void, and could be attacked whenever it was material to the interest of the parties to consider it. The judgment against the garnishee was a nullity. Civil Code, §5369. Section 4735 fully authorizes the issuance of summons of garnishment against an administrator, for the distributive share of the distributee, but only when the creditor complies with its terms. The administrator is primarily responsible to the ordinary, and the court of ordinary has jurisdiction. The mandatory requirements of §4735 must be complied with, in order to give any other court than the court of ordinary jurisdiction of an administrator, in a special proceeding like a garnishment. Harris v. Kittle, 119 Ga. 30 (3) (45 S. E. 729); Brown v. Wiley, 107 Ga. 85 (32 S. E.