Averback v. Spivey

• Decision Date: 30 January 1905
• Citation: 122 Ga. 18,49 S.E. 748
• Court: Georgia Supreme Court
• Parties: AVERBACK v. SPIVEY.

49 S.E. 748

122 Ga. 18

AVERBACK

v.SPIVEY.

Supreme Court of Georgia.

Jan. 30, 1905.

JUDGMENT—GARNISHMENT—ANSWER—DEFAULT.

1. While the act establishing the city court of Moultrie (Acts 1901, p. 143, § 35) provides for appearance and trial terms, and declares that in cases in which there is no plea or defense filed on the call of the appearance docket a judgment may be rendered by the court at said appearance term, yet section 19 (page 141) enacts "that the garnishment proceeding in the city court shall be conformable to the laws on the subject applicable in the superior court."

2. In the superior court, under Civ. Code 1895, §§ 4551, 4709, the garnishee in all cases has until the first day of the second term after the service of the summons of garnishment in which to answer.

3. Where, therefore, a garnishee failed to answer at the term of such city court to which he had been summoned, a judgment by default should not have been entered, and the judge, on a motion filed on the first day of the succeeding term, properly set the judgment aside and allowed the garnishee to answer.

4. The garnishee was not in default for failing to answer while the motion was under consideration by the judge. The answer filed immediately upon the grant of the order vacating the previous judgment was not too late.

(Syllabus by the Court.)

Error from City Court of Moultrie; W. A. Covington, Judge.

Action by M. J. Averback against J. P. Spivey. Judgment for defendant, and plaintiff brings error. Affirmed.

T. W. Mattox, for plaintiff in error.

J. D. McKenzie, for defendant in error.

LAMAR, J. In this case a garnishment was sued out on a judgment as provided in Civ. Code 1895, § 4705. By the last clause of section 4709 proceedings subsequent to the affidavit and summons "shall be the same as prescribed in cases of attachments." By Civ. Code 1895, § 4551, the answer in all cases is in time if made on the first day of the second term of the superior court after service of the summons. Sanders v. Miller, 60 Ga. 554; Jarrell v. Guann, 105 Ga. 141, 31 S. E. 149; Atlanta Journal v. Brunswick Pub. Co., 111 Ga. 722, 36 S. E. 929. Under these decisions and sections of the Code the garnishee therefore had until the first day of the February term, 1903, in which to answer, and the default judgment entered during the November term, 1902, was void (Liverpool v. Savannah Grocery Company, 97 Ga. 747, 25 S. E. 828), unless the act establishing the city court of Moultrie has modified the general law contained in the Code. Section 35 of that act (Acts 1901, p. 143) provides for an appearance and a trial term, and declares that "in all cases in which there is no plea or defense filed on the call of the appearance docket * * * a judgment may be rendered by the court at said appearance term." Section 15 provides that the laws governing pleading and practice in the superior court shall be applicable to said court unless otherwise provided in the act; section 18, that all laws upon the subject of attachments and garnishments in the superior court shall apply to said city court so far as the nature of said city court will admit. By section 19 it is further enacted "that the garnishment proceedings in the city court shall be conformable to the laws on the subject applicable in the superior court." It is claimed that under this statute a failure of the garnishee to answer on or before...