Brother v. Brandt

• Citation: 48 Ga. 440
• Court: Supreme Court of Georgia
• Decision Date: 31 January 1873
• Parties: Neil McCallum & Brother, plaintiffs in error. vs. Herman Brandt, defendant in error.

48 Ga. 440

Neil McCallum & Brother, plaintiffs in error. vs. Herman Brandt, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Garnishment. Bankrupt. Before Judge Gould. City Court of Augusta. May Term, 1872.

At the May term, 1872, of the City Court of Augusta, Neil McCallum & Brother obtained a judgment against Adolph Brandt, on an action of complaint, for $620 13, besides interest and costs. Herman Brandt was served with process of garnish-ment in said suit, returnable to the February term, 1872, but had failed to file an answer. After the jury was discharged for the term, plaintiffs moved for a judgment against the garnishee. The latter then offered to file his answer denying any indebtedness to the defendant, and, as an excuse for his delay, stated that, at the instance of Russell & Alger, petitioning creditors, a rule to show cause why he should not be adjudged a bankrupt was granted by the Judge of the District Court of the United States for the Southern District of Georgia, and served on Adolph Brandt on January 26th, 1872, the alleged grounds of bankruptcy being the giving of a mortgage dated July 17th, 1871, to Julius Kaufman, which was foreclosed on January 13th, 1872, and a failure to meet his commercial paper. Cause was shown by Adolph Brandt to the contrary, but he was adjudged a bankrupt on April 1st, 1872. Subsequently, on the same day, such adjudication was set aside and a new trial ordered, which is still pending undetermined.

These facts were not disputed. The Court refused to allow judgment against the garnishee, and ordered his answer to be filed. To which ruling plaintiffs excepted.

Frank H. MILLER, for plaintiffs in error.

Joseph P. Carr, for defendant.

*Trippe, Judge.

We do not think the Judge abused his discretion in permitting the garnishee to file his answer at the time he did. The main defendant had been adjudged a bankrupt. It is true the judgment had been set aside, but proceedings were still pending in bankruptcy, and this was the reason the garnishee gave why he had not filed his answer before the jury was discharged, not believing that judgment could be taken against the principal debtor. The Court below seemed to think the fact that the pendency of the involuntary proceedings in bankruptcy suspended the jurisdiction of the State Court. There is some authority which goes to that extent, and this Court is not prepared unanimously to hold to the contrary. For myself, I do not think that...