*1 registry ., court. . of the into the the award of the assessors Hwy. its distribution.” State concerned with [it] is not thereafter Taylor, Dept. injured by any No act of the condemnor. The condemnee was judge restraining trial issued at its instance. order was way sought. in no The condemnee has denied all of the relief denying prejudiced. judge condemnee’s The trial was correct appeals. dismiss the condemnor’s motion to Judgment Pannell, J., Eberhardt, J., concur. P. affirmed. 2, 1973. 6, 1973 September Decided October Submitted appellant. Peek, Jr.,

J. for Corbett appellee. Dillard, Dillard, P. Dillard & INC. SQUARE, FACTORY 48081. SNOOKS et al. v. garnishment appeal Presiding Judge. in a action Plaintiffs Hall, overruling exceptions objections to the their from the order answer of the garnishee. particular writing was an "answer” a sole issue is whether

capable to the summons later amendment. garnishee company August 18,1972, the served corporate court a letter on to the clerk of the sent letterhead, which read: 72-1095

"Re: Garnishment No. subject wages employee [the whose L. Schwartz garnishment] company. longer employed by

Subject this wages as of 8/15/72.” drawn were and last Termination signature manager plant signed by had the and also It although It indicated notary, of oath. no words it contained a a carbon attorney, plaintiffs’ copy who received sent had been insufficiency. objections its directed it and paper 1972, stamped clerk on required day period 30 to within the plaintiffs, Moreover, in an admission §Ann. 46-106. under Code appeal, state, and appellant’s this submitted on brief contained we are entitled photo truth, "attached to take copy to the letter.” the summons

On 1972 the filed an "amendment” to the October fully complies answer which of Code 46-301. legal Plaintiffs contend that there never existed answer in amended; case which could be sufficient erroneously timely amendment, allowed as they They rely upon Staley previously garnishee. had moved for *2 Whitney v. S. 279), response in to SE2d which a letter the clerk in to a summons was not considered to be an answer. Staley distinguishable important ways.

We the is in believe case Staley prior many years We must remember that was decided pleadings pleader CPA to the when were construed the emphasis form was on rather than substance. CPA apply special statutory proceedings except "shall to all to the specific practice procedure extent that rules of in conflict prescribed expressly by law, but, event, are herewith in the governing sufficiency pleadings; of this Title of apply proceedings.” defenses; . . amendments . shall all to Code "Subject §Ann. 81A-181. to the [CPA] pleading applicable pleading defenses, the same liberal rules to plaintiffs’ apply pleadings.” claims will for relief to defendants’ Metzger, keystone Davis pleadings of the CPA is that "All so shall be construed to do (f). justice.” substantial Ann. 81A-108 This is a neutral principle applicable of law to and defendants alike. light CPA, let us consider the information contained in garnishee’s letter which was filed and served as outlined above. Enclosure of the left no doubt of case in filed, letter was filed, the character in that response garnishee. Filing timely. as the were Plaintiffs put garnishee’s position prior notice on was that as of a date paid to the service of the summons defendant had been his "last wages” garnishee’s employ. implication and had left plain denied to indebtedness defendant. The signature plant manager notarized of the was affixed. pleading letter,

We laud do not which fails to required by governing § 46-301 the informational of an contents properly provide verified, It answer. was not failed to information to which was entitled. Simplex However, these defects were Co. v. Machine Greenberg 530), & Bond and later were by importance cured Of amendment. critical the fact they were notified they object positioned they answer; so; to to and traverse this complete contained information received benefit they receiving thereby amendment, to which all information they now the further statute; had then and have were entitled garnishee prove opportunity traverse insist that on their been vexed answer. Plaintiffs have truth of the amended objecting filing necessity the initial "answer” they compel one, we do not see in order to a better but litigation by garnishee’s prejudiced significantly in this errors form. pressed by plaintiffs-appellants,

Returning on to the only pleading point relevance that case has the today involved here importance prior only, information, of historical us the CPA the letter we now have before to would not have satisfied enactment of pleading requirements challenge holding today any way 46-301. Our point. Indeed, not rule that letter satisfied we do only that, 46-301; plaintiffs’ filed and served hold when we nullity counsel, it such Moreover, we observe of later amendment. *3 garnishee’s there such a letter

decision does nullity hold it been filed. The to be of amendment had required point to reach that because the letter was court was neither filed (and requested nor filed as an answer therefore be primary pleading, entirely is to failed in the function of a upon give spread notice have its contents record parties). thereof to all significant

A difference between the instant case further here was on case is that the letter caption No. L. with the "Re: Garnishment letterhead original attached to Schwartz” deputy garnishment result clerk of the trial signature: entry "Answer of court made this over her official day September, 1972.” 21st filed in office this Although specifically an to have show oath filed in still it was notarized and administered writing garnishment read answer in summons which "To oath.” held where an this court has

As the absence verification garnishment omitted is unverified the answer to a summons of might A. v. J. Jones oath be added amendment. Simmons

775 Cotton Banning Const. 72 Ga. 517 SE2d 338). (157 SE v. Muse Clothing Mills 221). Works, SE Foundry Cf. Neal v. Davis &c. then find this case containing If no oath we we treat County Mfg., v. Lee to Aetna Finance Co. to be similar 374). under oath and There the letter was not App. 200 because judgment a default was entered the default days Ten after the court was unaware of the letter. under filed an answer had been entered the the default twenty-five days oath and after This court held judgment. motion to set aside appears was to set aside on the same situation asserting that in our case in that "The record shows that a letter filed within it was an answer to a summons of ” Ltd., Co. Aycock Royal Ins. . . required. the time See also considering The court did not err in the second as an basing overruling amendment its objections upon its sufficiency. Bell, J., Eberhardt, J., Deen, Quillian, P.

Judgment C. affirmed. Stolz, JJ, Pannell, J., Ev- specially. Clark and concur. concurs ans, J., dissents. April Argued Decided

Rehearing 3, 1973 denied October Braziel, F.

William appellants. Friedman, Weiner, & E. Ginsberg, Haslam Ronald appellee. Pannell, Judge, concurring I concur in the result specially. majority opinion and that "the sole issue is whether particular of later amendment.” writing capable was an 'answer’ however, I agree, do not of the Civil Practice determining Act cited to do with anything if whether or not the filed was an "answer” and an paper amended, whether or not if met the answer as if of the statute. it is an Whether *4 answer, amended, the statute requirements as it met of governed solely by expressly provided by Code 46-301 as is very quoted by majority, sections of the Practice Act Civil gives Act to such way specific provision filed statutory proceeding. paper by If the sent to the clerk and answer, him is not an it is not of liberal subject to Act, for if construction pleading provided the Civil Practice by of is an If it pleading. not a it is not an answer here is paper the re- then as to be sufficient and is so answer determination making control quirements §46-301 garnishing answer is then a sufficient the answer of whether construction for liberal cannot use We proceedings. thing whether determining for first as a device pleading. answer, and the clerk as by opinion, In my so allegations enough contains purpose, for that sent apparently therefore, amendable. void, and to be as not I vote these reasons 46-301. For with Code complied amendment judge. the trial to affirm C. Joseph H. Snooks and dissenting. James Judge, Evans, Schwartz, as against Lee

Snooks, obtained plaintiffs, of Chatham term, 1972, Court defendant, of State the June at garnishment. and bond filed affidavit County, and thereafter served duly was 18, 1972, August On an answer Inc., requiring garnishee, Square, upon Factory service; further and from date of days not later than under oath indebted to what the answer to show requiring belonging it held property money and what Schwartz summons, the date and Schwartz on date of service Thus the latest Ann. 46-105. for in provided all as 3, Although garnishee 1972. date for answer was October 20, on time it did required, within the file an answer longer "subject 1972, which stated writing tender a wages drawn were and last company. Terminated employed by Anderson, Manager. Plant 8/15/72,” by Mable signed as of motion 5, 1972, counsel filed a written On October and at against garnishee, in favor of the to dismiss and moved objected excepted same time answer,” and "it is not an effective because purported 27, 1972, paper same. On October traversed answer,” set forth designated "amendment denying answer to the summons therein a sworn Schwartz. to defendant indebtedness trial judge hearing

A was conducted answer, and his motion to dismiss objections, and exception, January and on judgment, motion for entered his The trial judge therein. against plaintiff rendered this court. appeals to appealability, certificate in no wise an paper 1. The first *5 It garnishment. completely comply to summons of failed to with the summons of and with writing, 46-105 and 46-301. It was a mere not §§ official; in the any particular person addressed to or not entitled cause; to; not sworn information as to what providing any it garnishee money property was indebted to Schwartz or what had in hand belonging to Schwartz. controlling

It was a mere A case in nullity. point authority 279), Staley Whitney v. S. that of garnishee where the answering also wrote a letter instead and the court held failed to statute; judgment by against default was entered and garnishee’s motion to set aside the demurrer; should have been stricken on Superior Court of Richmond erred in County overruling said demurrer. case,

The majority opinion seeks to Staley destroy by pointing out that it was CPA, rendered many years prior to the and that now "all pleadings shall be construed to do substantial justice”; must be construed liberally.

Can the majority actually stand on that premise? Does the majority really contend Code 46-301 has been watered down or in wise any affected the CPA? hope We would not! certainly If the CPA has liberalized then in what respect has statute, so liberalized the what of the statute effect, remain if any, respecting answers to summons of garnishment? Has the necessity for an oath to the answer been eliminated? Is there time limit left in the law within which must answer? Is the answering relieved of what he was indebted to defendant on date of service of summons of garnishment and what he has become indebted thereafter until time of answer? Is he relieved what property he had — in hand on date of service of summons and what has come into possession his thereafter until time of belonging defendant? Just how liberal are the requirements under the CPA? The CPA has nothing done whatever to the statute which requires a proper answer to garnishment, and the Staley case sets correctly forth the law of this state and binding precedent is a in this court. majority opinion states is dis- — tinguishable then "important ways” only asserts one allegedly feature, wit, distinguishing it was decided before the CPA. This is not an "important way” distinguishing Staley case from the case judice, absolutely sub as it makes no CPA. to enactment of prior was decided

difference "timely” filed. opinion urges case, was received enough. That the answer It fatally it was held to be defective. ample the clerk in time but exists has held that to file right but the motion for garnishee, moves for Banning Cotton Mills to answer. right cuts off See Owen Clothing Muse Alterman, *6 (1) v. 787); 42 Ga. Moseley, Payne v. SE (129 (3) Moseley, v. SE Owen 121); App. SE 34 Ga. App. 663 Ltd., Aycock Royal v. Ins. Co. SE letter not the opinion The admits the does with garnishment; of Code 46-301 as to an in and answer verified; it to provide that it not and that failed properly But it to which contends plaintiff information the entitled. & Bond Simplex Greenberg Machine Co. v. that under 530) similarity it was amendable. There sub In Simplex judice. whatever between the case and the case Simplex since the service of answered garnishment, bankruptcy summons of the defendant had filed debt it was a proceedings question, and had scheduled the dischargeable stay debt for a final prayed and discharge determination of defendant’s question bankruptcy. it . . . that majority argues importance

The is "of critical were notified [and this answer.” There object to and to traverse positioned thus] plaintiff is show that was notified of nothing this record to the letter a response. At the lower left hand corner of there is Brazziel, completely meaningless. That Atty.” notation: "CC: W. to, and urged object, except But it traverse (letter writing). very mere He well learned answer could —a through of the letter clerk’s office. inquiries "Moreover, that: we majority opinion asserts observe garnishee’s decision hold that letter there was had it been filed.” nullity such a as to be of amendment 889) (page gives why reasons as to three garnishee’s any answer was not one a nullity to show answer was enough purported be construed to be amendable, as follows: "Even could if 46-301, a with compliance not, it which it can summons of does appear that the was filed or that the garnishee requested ” it (Emphasis be as its answer in the proceedings. supplied.) judice wit, In the case sub two of present, these reasons were no compliance request with Code and no it be filed as an answer. enough This was to show it was not amendable. fully completely complied with the law. When answer, there is semblance of an no matter whether fatally not, defective or a judgment of default cannot be rendered until purported proper has been removed by attack. Ltd., Aycock Royal Ins. Co. supra, was held: where, case, ".. . as in purported, although the instant for many defective, a fatally reasons answer to a summons of has been law, within required by the time record, and such as shown on the face of the remains of, untraversed undisposed it should be first dismissed or disposed otherwise before a by default can be properly taken.” Plaintiff filed objections to the 5,1972, answer on October asserting was not an effective dismissal, and moved its and then in a separate paper traverse. In this plaintiff exactly complied with the law and was entitled to have the letter which purported an answer dismissed, and was entitled to a judgment by default. reasons,

For the foregoing dissent, I and I would reverse the *7 judgment, as the plaintiff was judgment. entitled to 48245. STAMM & COMPANY v. COMPANY, BOAZ SPINNING

INC. Bell, Chief Judge. Plaintiff sued the defendant open recover on

account. Defendant answered and counterclaimed. Thereafter an order was entered on November 1972 reciting that the case came on to be heard the court without a jury; failed to appear person counsel; or by that upon motion the complaint dismissed; and that after hearing evidence of the defendant the latter granted a money judgment. On November 1972 a verified motion was filed by attorney to set aside the judgment on the ground that failed appear when the case was called for trial due "to a clerical error on the part of a clerk in the office of movant’s attorney” who failed to note the date of trial on plaintiffs