Holbrook v. Evansville & T. H. R. Co

• Decision Date: 06 November 1901
• Citation: 39 S.E. 938,114 Ga. 4
• Court: Georgia Supreme Court
• Parties: HOLBROOK et al. v. EVANSVILLE & T. H. R. CO.

39 S.E. 938

114 Ga. 4

HOLBROOK et al.

v.EVANSVILLE & T. H. R. CO.

Supreme Court of Georgia.

Nov. 6, 1901.

GARNISHMENT—SERVICE OF SUMMONS.

Due and legal service of a summons of garnishment upon a railroad company is not shown by an entry reciting that the summons was served personally upon each of three named persons, the first designated as "Gen. Sou. Agt., " the second as "Trav. Prt. Agt, " and the third as "Commercial Agt., " and that these persons were "in charge of office." Such an entry is defective in failing to disclose that the individuals served were agents of the company, and in not affirmatively showing that the "office" of which they were in charge was its office.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Garnishment proceedings by A. L. Holbrook & Co. against the Evansville & Terre Haute Railroad Company. Illegality overruled in justice court. On judgment sustaining a certiorari, plaintiffs bring error. Affirmed.

S. D. Johnson and Jas. K. Hines, for plaintiffs in error.

Westmoreland Bros., for defendant in error.

LUMPKIN, P. J. This case, upon its facts, is identical with that of Holbrook v. Railroad Co., 114 Ga. —, 39 S. E. 937, save that the return of service in the present case was in the following words: "Served the within by serving summons of garnishment issued on within affidavit and bond on Evansville & Terre Haute R. R. by serving D. H. Hillsman, Gen. Sou. Agt., S. L. Rogers, Trav. Frt. Agt., and R. L. Sams, Commercial Agt, each personally, at 3 p. m., they being in charge of office. This March 2, 1889. [Signed] R. B. Lynch, L. C." The judge of the superior court, following the decision rendered in Railway Co. v. Hagan, 103 Ga. 564, 29 S. E. 760, held that this entry of service could not lawfully be made the basis for entering up judgment against the defendant in error for failure to answer the summons of garnishment. In this conclusion we fully concur. As will have been observed, there is in this entry no recital that the individuals therein named were agents of this particular rail.load company; or that they were in charge of its office; or, indeed, that it had any office in this state. The statement, "they being in charge of office, " was entirely too general and indefinite to meet the requirements of the statute with reference to the service of summonses of garnishment on corporations. See, also, in this connection, Hargis v. Railway Co., 90 Ga. 42, 15 S. E. 631; Bank v. McCullough, ...