Ahrens & Ott Mfg. Co. v. Patton Sash, Door & Bldg. Co.

• Decision Date: 06 August 1894
• Parties: AHRENS & OTT MANUF'G CO. v. PATTON SASH, DOOR & BUILDING CO. et al.
• Court: Georgia Supreme Court

21 S.E. 523

94 Ga. 247

AHRENS & OTT MANUF'G CO. v. PATTON SASH, DOOR & BUILDING CO. et al.

Supreme Court of Georgia

August 6, 1894

Syllabus by the Court.

1. Where it affirmatively appears both from the bill of exceptions and from the certificate of the judge thereto that no part of the record is necessary to be sent here by transcript, the writ of error will not be dismissed because there is no transcript.

2. While successive garnishments may issue in a pending case commenced by attachment, yet, after the case has terminated in a judgment against the defendant in attachment, no further garnishment can issue founded upon the same attachment notwithstanding an issue may still be pending between the plaintiff and a former garnishee touching the truth of the answer made by such garnishee to a garnishment issued in due time.

3. As the defendant in attachment, as well as the garnishee, is interested in the question of whether the garnishment has legally issued, the garnishee does not, by answering the garnishment, waive his right to have the proceeding dismissed at the hearing of an issue traversing his answer; the ground of the motion to dismiss being that there was no legal authority for issuing the garnishment, because judgment had previously been rendered against the defendant in the attachment suit, and thus the suit, as a basis for summons of garnishment, was no longer pending.

Error from city court of Floyd; W. T. Turnbull, Judge.

Action by the Ahrens & Ott Manufacturing Company against the Patton Sash, Door & Building Company and others, defendants and garnishees. From the judgment rendered, plaintiff brings error. Affirmed.

Henry Walker, for plaintiff in error.

Dean & Smith and J. E. Dean, for defendants in error.

LUMPKIN J.

1. One of the main purposes of the supreme court practice act of 1889 was to dispense with irrelevant and superfluous matter in bringing cases to this court. Accordingly, we have no difficulty in holding that, where no part of the record is necessary to be sent up, the writ of error should not be dismissed because there is no transcript of the record. In the present case, it affirmatively appears that the bill of exceptions contains everything necessary to a proper adjudication of the case. In overrulling the motion made to dismiss it, we are conforming to the spirit, if not the letter, of the act of 1889, and also to the will of the legislature, very frequently manifested in recent years, and expressly stated in its most recent enactment with reference to practice in this court, to the effect that cases shall not be dismissed when there is enough before this court to enable it to ascertain substantially the real questions made, and which the parties seek to have decided.

2. Garnishments may issue where suit is pending, or where judgment has been obtained. Code, § 3532. In the former case,...