O'Donovan v. Ocean Steamship Co., 65

65 | Ga. Ct. App. | Feb 13, 1907

Powell, J.

O’Donovan sued a defendant by attachment and 'had the Ocean Steamship Company served with a summons of garnishment, returnable to the February term of a justice’s court in Savannah. This court convened on February 14, and remained in session until February 27. ^On the first clay of the session the ■court entered up judgment by default against the defendant in the main case and, on the next day, against the steamship company on the garnishment. On the same day, but after the judgment on the garnishment had been duly entered, the steamship” •company filed its answer, admitting an indebtedness smaller in ;sum than the amount of the judgment, and asserting that the same was exempt from process of garnishment. The justice of the peace held that the answer was not filed within the time allowed by law, and issued execution against the steamship company. The matter was brought to the superior court on certiorari, and the trial judge there sustained the certiorari and ordered a new trial in the justice’s court. O’Donovan excepted, and brings the action of the superior court to this court for review. He also complains •of the refusal of the judge to allow him to file certain exceptions to the answer of the magistrate, but, in the light of what we are herein holding, it is unnecessary to consider this exception.

1. Although a garnishee fail to answer until after judgment has been rendered against the defendant in the main case and also against the garnishee in the garnishment proceedings, it is still .a matter of judicial discretion to allow the garnishee to open the judgment against him and to file his answer at any time before the adjournment of the term of the court to which the summons of garnishment is returnable. Russell v. Freedman’s Bank, 50 Ga. 576; Emanuel v. Smith, 38 Ga. 603; Harris v. Breed, 38 Ga. 298; Bearden v. Railway Co., 82 Ga. 605, and cases cited; Atlanta Journal v. Brunswick Pub. Co., 111 Ga. 718. Since a justice of the peace has no power to set aside a judgment formally entered in his court, this discretion is not addressed to him, but is addressed to that tribunal which has the supervisory power over all the'transactions occurring in such inferior courts, namely the superior court. If the matter be brought before the superior court by certiorari, the trial judge is there invested with the same discretion that would have been addressed to the justice of the peace if that offi■cer were not denied the power, ordinarily inherent in courts, of controlling their judgments until the expiration of the session. 'Therefore the action -of the judge of the superior court, which in •effect vacated the judgment of default and ordered a new trial in the justice court, will not be reversed. Judgment affirmed. .