Willet v. Price

32 Ga. 115 | Ga. | 1861

By the Court.

Lyon, J.,

delivering the opinion.

John V. Price having prayed an attachment against Geo. A. Brown, returnable to the May Term, 1857, of Sumter Inferior Court, caused a summons of garnishment to be served on Asabel A. Willet, returnable to that term of the Court. To this summons Willet failed to make answer at the return term, and at the November Term, 1857, after the plaintiff in attachment, Price, had obtained judgment on the attachment against the principal debtor, Brown, the Court, on motion of plaintiff’s counsel, gave judgment against the garnishee, Willet, for the principal and interest of the attachment debt, he hajjing failed to make any answer up to that time. After the judgment was thus rendered by the Court, Willet, the garnishee, came in and filed his answer, denying indebtedness, etc., and moved the Court, verbally, to set aside the judgment rendered against him in said cause, which motion the Court refused. Willet took no further steps to relieve himself from this judgment, or to enforce his motion to set aside the judgment, until an adjourned Term of the Inferior Court of Sumter county, held in January, 1859, when, upon the application of Willet, that Court granted a rule nisi, calling on Price to show cause why the judgment should not be set aside, on the ground that he, Willet, at the same term, and on the same day on which judgment had been rendered against him, but afterwards, had filed his answer thereto, etc., to which rule nisi Price answered in writing, and, on oath, reciting the -facts as stated above. Upon the coming in of that answer, Willet, by his counsel, moved to make his motion to set aside the judgment, absolute, which motion the Court refused, and discharged the rule nisi. To this judgment of the Inferior Court, Willet sued out a writ of certiorari, and upon the hearing thereof before the Superior Court, that Court refused the application, and discharged the writ, and that is the decision complained of before us.

The Attachment Act of the 4th of March, 1856—Pa'm., p. 29—enacts, that when the gárnishee fails to appear and answer at the Term of the Court at-which he is required to appear, the case shall stand continued until the next Term of the Court, and if he shall fail to appear and answer by the next Term of the Court, the plaintiff in attachment may, on motion, have judgment against him for the amount of the judgment he may have obtained against the defendant in attachment, etc.

The garnishee was required to answer at the return term of the summons; having failed to do this, the law, for his benefit, allowed the case to stand continued until the next term, so that he might have the fullest time and opportunity in which to be heard in answer to the summons. The next term comes, and there is still no answer, although the statute expressly provides that, unless the answer is made by that time, the plaintiff shall have judgment against him; not only that, but the case is regularly called, tried, and judgment rendered, in strict compliance with the statute; and after all this, the garnishee appears and files his answer, without the slightest excuse for his not having filed it earlier. In the opinion of this Court, the answer came too late to benefit the. garnishee. 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. 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 asi.de its own judgment, pronounced in strict obedience to the statute? We are at a loss to imagine on what principle the application is founded.

If it be true that the garnishee was not indebted to the defendant in attachment, nor had his effects in hand, as is stated in his answer, then the case is an exceedingly hard one; but it was brought on the garnishee by his continued and wilful neglect of the plain and positive requirements of the statute; and, from the consequences of such conduct, this Court, nor any other, has the .power to relieve him on the case made.

Judgment affirmed.