Carter v. First Nat. Bank of Sandersville

Decision Date22 August 1914
Docket Number5726.
Citation82 S.E. 628,15 Ga.App. 55
PartiesCARTER v. FIRST NAT. BANK OF SANDERSVILLE.
CourtGeorgia Court of Appeals

Syllabus by the Court.

Under the provisions of section 5294, Civ. Code 1910, if a garnishee "shall answer truly that he owes the defendant nothing," and "shall have to incur any expense in making his or her answer to the garnishment, * * * the amount so incurred shall be taxed in the bill of costs, under the approval of the court, and be paid by the party cast in the suit, as other costs are now paid." The provision to cover the expense in making the answer being mandatory, it was error, in a case where the answer of the garnishee denying any indebtedness was, in an issue formed upon a traverse, found to be true, to refuse to tax as costs any allowance whatever for attorney's fees, where the evidence as to the service of the attorney was undisputed. Under the verbiage of section 5294, the discretion involved in the approval of the trial judge is addressed to fixing the amount of expense to be allowed, and does not extend to or include the right to deny such expense altogether.

Error from City Court of Sandersville; W. L. Phillips, Judge.

Action by the First National Bank of Sandersville against J. T. Carter. Judgment for plaintiff, and defendant brings error. Reversed.

J. J. Harris, of Sandersville, for plaintiff in error.

M. L. Gross, of Sandersville, for defendant in error.

WADE, J.

Judgment reversed.

ROAN, J., absent on account of sickness.

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