4 Ga. 393 | Ga. | 1848
By the Court.
delivering the opinion.-
The plaintiff in execution sued out a summons of garnishment against one Posey Maddox, who answered, that he was not indebted anything to the defendant in execution. Phe plaintiff in execution traversed the answer, and the issue was submitted to a Jury who found for the defendant in garnishment. From this verdict the plaintiff in execution entered an appeal, which was dismissed by the presiding Judge, upon the ground that an appeal does not lie in such a case, because the issue formed is a collateral issue. To that decision plaintiff1 excepts, and the question is, whether, as matter of right, an appeal will lie from the verdict of a Jury, rendered on a traverse of the answer of a defendant in garnishment.
A familiar illustration of a collateral issue is, for example, this : A fund is in the hands of the Court, for distribution among conflicting Judgment liens. Upon suggestion that one of them is paid, the Court may order an issue to be made and sent to the Jury to find that fact. The main thing before the Court is the distribution of the fund. Pending the consideration of that matter, a controversy springs up as to the fact, whether a claim upon the fund has been extinguished. The Court has the discretion to submit that controversy to a Jury. If it is submitted, it is a collateral issue. It is collateral to the matter pending, and must be determined before that matter can be adjudicated. The rule I have quoted contemplates just such issues. Such as are preliminary — spring out of the matter in hand — are within the discretion of the Court and are ordered by it. It does not contemplate an issue which is ordered or allowed by law, as matter of right. And this is an issue of that kind. By the act of 1830, the plaintiff at whose instance the summons of garnishment has been sued out,, may make up an issue on the answer of the defendant in garnishment, which shall be submitted to a Jury. Prince, 40. Hotchkiss, 563. Here is the authority of law for this issue. It is the legal right of the party suing out the summons, to make up an issue, and the statute declares that it shall he submitted to a Jury. The Court has no discretion about it. It cannot withhold the issue, nor is any order necessary, unless merely to show by the record, the regularity of the proceeding to make up the issue. The issue is authorised by law, and upon it, the law requires the ■verdict of a Jury. This being settled, I refer to the Judiciary Act of 1799, which authorises an appeal, “ in all eases where a verdict shall he rendered.” The 26th section of that act provides, that in all cases where a verdict shall be rendered, the party in whose favor it may be, shall be allowed to enter and sign Judgment thereon, within four days from the adjournment of the Court, &c. It proceeds to give the right to enter a stay of execution, and then declares, “ that in case either party shall be dissatisfied with the verdict of the Jury, then, and in all such cases, either party may, within four days after the adjournment of the Court in which such verdict was obtained, enter an appeal in the Clerk’s Office of such Court, as matter of right.” Prince, 426. Hotchkiss, 600.
The party having entered his appeal in this case, as by law he had the right to enter it, we think the Court erred in dismissing it, and reverse the Judgment.