Dannenberg Co. v. Adler-May Co.

• Decision Date: 15 November 1911
• Citation: 72 S.E. 906,137 Ga. 111
• Parties: DANNENBERG CO. v. ADLER-MAY CO.
• Court: Georgia Supreme Court

72 S.E. 906

137 Ga. 111

DANNENBERG CO. v. ADLER-MAY CO.

Supreme Court of Georgia

November 15, 1911

Syllabus by the Court.

On November 13, 1909, a summons of garnishment, based on a pending suit, was served, commanding the garnishee to answer to the term of the superior court which would meet on January 3, 1910. On the latter date, a second summons in the same case was served on the garnishee, returnable to the March term of the court. This was accompanied by a written notice from the plaintiff, relieving the garnishee from answering the first summons, and directing it to make answer to the second. On January 17th, the garnishee filed an answer reciting that a summons of garnishment had been served on it and denying indebtedness. To this a traverse was filed, but no exception taken on the ground of the time when it was made. At a later term, a verdict and judgment by default were taken against the garnishee, based upon the second summons. At the same term when this was done, a motion was made to set aside the verdict and judgment, alleging that the answer which it filed was made to the second summons. Held that there was no error in granting the motion and setting aside the verdict and judgment.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Garnishment proceedings by the Dannenberg Company against the Adler-May Company. To an order setting aside a default judgment against the garnishee, the plaintiff excepts. Affirmed.

Frank L. Neufville and Hardeman, Jones, Callaway & Johnston, for plaintiff in error.

David Eichberg, for defendant in error.

LUMPKIN J.

A judgment was entered in the superior court against a garnishee as being in default in not answering a summons of garnishment. At the same term of the court, a motion was made to set aside this judgment, on the ground that the garnishee had in fact filed an answer to the second summons. The court sustained the motion, and the plaintiff excepted.

A summons of garnishment had been served on the garnishee in November, 1909, returnable to the January term of the superior court. Another summons of garnishment in the same case was served on the same garnishee on January 3, 1910 returnable to the March term of court. Attached to the second summons was a notice from the plaintiff, relieving the garnishee from answering the first summons, and requesting it to answer the second. On January 17th, the garnishee filed an answer of not indebted. It recited that a summons of garnishment had been served upon it, but did not specify whether the recital referred to the first summons or the second. Inasmuch as the...