Carhart & Ross & Co v. Jno. B. Ross & Co

• Decision Date: 28 February 1854
• Docket Number: No. 20.,20.
• Citation: 15 Ga. 186
• Parties: Carhart & Ross & Co., plaintiffs in error. vs. Jno. B. Ross & Co., defendants in error.
• Court: Georgia Supreme Court

15 Ga. 186

Carhart & Ross & Co., plaintiffs in error. vs. Jno. B. Ross & Co., defendants in error.

No. 20.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1854.

Garnishment, in Bibb Superior Court. Tried before Judge Powers, Nov. Term, 1853.

Ross & Co., on the 21st day of March, 1853, sued out an

attachment against Ptolemy Watkins, for $300, returnable to May Term, 1853, of Bibb Superior Court. The attachment was levied on 9 boxes of tobacco; and summons of garnishment served upon Elijah H. Carhart and Aaron A. Ross, both as individuals, and as partners, on the day the attachment was issued. At the November Term, 1853, verdict and judgment were rendered, and entered up for the plaintiffs on the attachment.

At the May Term, 1853, to which the attachment was returnable, counsel for plaintiffs took a rule nisi, calling upon the garnishees, Carhart & Ross, both as individuals and as partners, they having filed no answer to the garnishment, to show cause, by the first day of the next term of the Court, why judgment should not be entered up against them, for the amount of the plaintiffs' demand and costs, and that said rule be served, &c". At the November Term, 1853, the following order was taken: "it appearing that the above rule was not copied and served by the Clerk, it is ordered, that the same be now served by the Sheriff, as required; and that the said Carhart & Ross do show cause on or before 10 o'clock, A. M., on Monday, 21st November, 1853, why the judgment prayed for in the above rule, should not be entered up against them".

On the 8th day of December, during the session of said Court, counsel for plaintiffs moved the Court to enter final judgment on the rule, against the garnishees, Carhart & Ross; which motion was resisted by Carhart & Ross, who had, on the 29 th day of November, filed their answer to the garnishment, and which was then in Court. As an excuse, and in purgation of all contempt of Court, in not filing their answer within the time specified in the last order taken, to wit: the 21st day of November, they exhibited the affidavit of Thomas P. Stubbs, one of their attorneys at law, which stated, in substance, that so soon as the order was taken, he applied to the Clerk of the Court for the original summons of garnishment; that the same could not be found, until after the expiration of the time limited in the order; that when found, it was in the hands of the attorneys for the plaintiffs. The garnishees also stated, under oath, that so soon as they were served, to wit: on the 16th day of November, with the order requiring them to answer the garnishment, they applied to Messrs. Stubbs & Hill, to make out and prepare their answer, and that they were unable to do so, in consequence of the loss of the original garnishment; that they did not intend to evade answering, or in any way treat the order of the Court with contempt.

The Court decided that the answer of the garnishees was filed too late, and gave judgment against them, for the whole amount to the plaintiff's claim, with costs.

To which decision, counsel for garnishees excepted.

Stubbs & Hill, for plaintiffs in error.

Hall & Carey, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

Was the Court right, in ruling that the garnishees having failed to file their answer on the day designated in the order for that purpose, they were remediless at Law, and could only be relieved in Equity?

The Act of 1834 provides, "that where a person shall fail to answer, after being duly summoned as garnishee, the Court, upon the motion of the plaintiff, or his attorney, shall pass a rule or order, requiring the garnishee to answer, at such time as the Court may direct, or show cause why judgment should not be entered against him, for the amount of the plaintiff\'s demand and costs; which rule shall be served by the Sheriff or his Deputy; and if the garnishee shall fail to answer or show cause, at or by the time limited in the said rule or order, the Court shall enter judgment against the garnishee, for the amount of the plaintiff\'s judgment, with costs". (Cobb\'s Digest, 83, 84.)

Is the language of this Act so imperative,...