161 Ga. 62 | Ga. | 1925
Garnishments may issue (a) “where suit is pending,” or (b) “where judgment has been obtained” (Civil Code
From the history of the foregoing legislation it appears that in the beginning the failure of the garnishee to answer rendered him subject to be proceeded against only as for a contempt of court. This was changed by amendment so as to authorize the issuance and service of a rule 'calling upon the garnishee to show cause why judgment should not be entered against him for the amount of the plaintiff’s demand with costs, and, upon his failure to answer or show cause by the time limited in the rule, to authorize a judgment against him for such amount; and" this was subsequently changed by the act of 1856, supra, by omitting the provision for service of a rule upon the garnishee, and allowing the plaintiff, after having obtained a judgment against the principal debtor, to enter up judgment “on motion” against the garnishee for the amount of the judgment he had obtained against the principal debtor. While the formality of a rule against the garnishee was dispensed with, the statute as finally amended contemplated the call of the case in its order on the docket of the court and affirmative action on the part of the plaintiff after he had taken his judgment against the principal debtor, before he would be entitled to enter a judgment against the garnishee. This is obvious from the words in the statute, “on motion.” Those words could have no other meaning. They can not be written out of the statute. The
In Willet v. Price, 32 Ga. 115, referring to this statute, the court said: “The construction that we give this act is that the answer must, at least, be made and filed before judgment is had against the garnishee.” In that case the garnishee did not answer until after the garnishment case had been called, and “on motion” of plaintiff’s counsel judgment had been rendered against the garnishee. Of course, after judgment against the garnishee had been rendered, it was conclusive and too late for the garnishee then to make his answer. The court refused the subsequent motion of the garnishee to set aside the judgment and to allow him to make an answer. This court said: “After the judgment had been pronounced, and the rights of the plaintiff in attachment fixed, by what right, or under what rule of law, could the court have opened and set aside its own judgment, pronounced in strict obedience to the statute?” The construction placed upon the act by the court was in keeping with its prior ruling in Wall v. Shippard, 30 Ga. 923, applying the same statute. It was there said: “When a case is reached against a garnishee who has not answered, he is entitled to be called; and if he then appear and depose, it is in time.” The facts in that case were that a summons of garnishment required the garnishee to answer at the March term, 1859. The garnishee having failed to answer at that term, the case was continued. On the second day of the next term of the court, the case having been regularly called, and no answer having then been filed, it was moved to enter up judgment against the garnishee for the amount of plaintiff’s judgment against the principal debtor. The court refused the motion, and allowed the garnishee to be called into court and to prepare and file his answer after being called and after coming into court. The exception was to this judgment. In
The facts in the case of O’Neill Manufacturing Co. v. Ahrens & Ott Manufacturing Co., 110 Ga. 656 (36 S. E. 66), as they appear from the reporter’s statement of facts, were that summons of garnishment based on a judgment was issued and served, returnable to the January term, 1897, of the superior court. In 1899 the plaintiff filed a petition for rule requiring the garnishee to show cause on April 10th, during the call of the motion docket, why
As it appears from the statement of facts set out in the question propounded by the Court of Appeals that the answer filed by the garnishee was in time, it becomes unnecessary to answer the second question propounded by the Court of Appeals.