Kiser v. Kiser, 38228
| Citation | 114 S.E.2d 397,101 Ga.App. 511 |
| Decision Date | 14 April 1960 |
| Docket Number | No. 38228,No. 2,38228,2 |
| Parties | T. R. KISER, Sr. v. Mrs. G. O. KISER |
| Court | Georgia Court of Appeals |
Howe & Murphy, Harold L. Murphy, D. B. Howe, Buchanan, for plaintiff in error.
Murphy & Murphy, Thomas B. Murphy, James R. Murphy, Bremen, for defendant in error.
Syllabus Opinion by the Court.
1. A motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict (Code Ann. § 110-113) and where it appears from the record that no such motion was made, a motion for judgment notwithstanding the verdict cannot be considered. Durden v. Henderson, 212 Ga. 807(1), 96 S.E.2d 362. Where, however, it appears from the record that the motion for judgment notwithstanding the verdict contains a recital that it is made in accordance with a prior motion for a directed verdict, and where no contention is made in the trial court that such prior motion was not in fact made, and the trial judge thereafter grants the motion for judgment notwithstanding the verdict, this court will presume that such judgment is supported by every fact essential to make it valid and binding. Chance v. Chance, 60 Ga.App. 889, 892, 5 S.E.2d 399, and the defendant will not be heard to raise the question for the first time in this court as to whether such prior motion was in fact made.
2. A garnishment is a distinct suit on a new cause of action (Anderson v Ledbetter-Johnson Contractors, 62 Ga.App. 732(9), 9 S.E.2d 860). However where the defendant in the main suit gives a dissolution bond, the garnishee pays the money into court, and it is received by the defendant, the issue is changed from one between the plaintiff and garnishee to one between the plaintiff and the defendant. Rainey v. Eatonton Co-operative Creamery, Inc., 69 Ga.App. 547(2), 26 S.E.2d 297. The garnishee here admitted its indebtedness to the defendant, paid the fund into court, and was by order of the court and agreement of the parties discharged from all further liability. The defendant was thus substituted in the place of the garnishee and had the same rights which the garnishee would have had to contest the legality of the proceeding. Leake v. Tyner, 112 Ga. 919, 38 S.E. 343. A garnishee may inquire into the validity of the judgment on which the garnishment is based. Ingram v. Jackson Mercantile Co., 2 Ga.App. 218(2), 58 S.E. 372. It was accordingly proper for the defendant, if he wished to contest the proceeding, to file the written pleading denominated here a counter-affidavit in which he attempted to set up a defense to the action.
3. Error is assigned on the judgment of the trial court striking the defendant's counter-affidavit on general demurrer. The pleading alleged that the garnishment, which was based on certain temporary and permanent alimony judgments, was proceeding illegally and was a fraud on the court; that the judgment for permanent alimony was rendered by the court based on a verdict of a jury; 'that as a condition precedent and as an integral part of said verdict said Mrs. Kiser conceded and stipulated on the trial of said alimony case that certain land belonged to defendant, and that after said verdict was returned and before said judgment was issued by the court, and again after said judgment was signed by the court, she agreed to sign a quit claim deed to T. R. Kiser'; that she never delivered such deed and the judgment was thus fraudulently obtained 'and is a nullity unless plaintiff complies with her part of same by executing and delivering to defendant T. R. Kiser a quit claim deed to said land.'
No facts are set out sufficient to show fraud which would void the judgment in question. The judgment itself, which is pleaded in the garnishment affidavit as amended, is a judgment granting divorce and permanent alimony and contains no reference to any obligation on the part of the plaintiff in garnishment to make a...
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