Studdard v. Stephens

44 Ga. App. 324 | Ga. Ct. App. | 1931

Luke, J.

The petition of C. H. Studdard for a writ of certiorari from the appellate division of the municipal court of Atlanta to the judge of the superior court of Fulton county was “overruled and dismissed and a new trial denied.”

The controversj'-, as appears from the record and the brief for plaintiff in error, revolves about the answer of Barge, Thompson & Company, a copartnership, to a summons of garnishment issued upon a judgment rendered by a justice of the peace. In connection with the answer the garnishee paid a sum of money into court, which sum was admittedly owing to the defendant by the garnishee. Upon the filing of the answer the defendant (plaintiff in error) executed and filed a dissolution bond, and thereupon- sought to attack the validity of the garnishment proceedings by means of a verified motion, a counter-affidavit, and a so-called affidavit of illegality. By means of the verified motion the defendant sought to attack the sufficiency and validity of the service of the summons of garnishment upon the named garnishee. By the counter-affidavit he sought to challenge the validity of the judgment of the justice of the peace upon which the garnishment proceeding was based. By the so-called affidavit of illegality he attempted to attack the validity of the garnishment proceeding, but, in this instance, through an attack upon the validity of the judgment. By orders successively entered by the judge of the municipal court, the verified motion was overruled, and the counter-affidavit and the affidavit of illegality were stricken. The appellate division of the municipal court affirmed the action of the trial judge, and, as hereinbefore indicated, a petition to the superior court for certiorari was overruled. . The judgment of the superior court in the premises is as follows: “The defendant filed a counter-affidavit to the garnishment proceedings, closing with the words: ‘ Wherefore, defendant prays judgment in his behalf in terms of the law, that the issues involved be tried by a jury, as provided by the rules of practice of this court.’ The defendant filed also what he termed an affidavit of illegality, closing udth the prayer ‘that the garnishment proceedings be dismissed at- plaintiff’s costs; that the issues herein involved be tried by a jury in terms of the law.’ In view of the grounds of the counter-affidavit and illegality and the prayers of the same, this court is not convinced that error was committed. Wherefore the within certiorari is overruled and dismissed, and a new trial denied. Judgment against plaintiff in certiorari for--dollars costs.”

Obviousty, as we think, there is no error in the judgment of the superior court.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.