Kittles v. Thorpe

• Decision Date: 05 October 1922
• Docket Number: 13345,13368.
• Citation: 114 S.E. 228,29 Ga.App. 146
• Parties: KITTLES v. THORPE ET AL. THORPE v. KITTLES.
• Court: Georgia Court of Appeals

114 S.E. 228

29 Ga.App. 146

KITTLES v. THORPE ET AL.

THORPE v. KITTLES.

Nos. 13345, 13368.

Court of Appeals of Georgia, First Division

October 5, 1922

Syllabus by the Court.

Where a summons of garnishment is served on one date, but the entry of service shows a different date, this error, upon proper proof and by order of the court, may be corrected, and an entry made nunc pro tunc so as to make the entry speak the truth. Civ. Code 1910, § 5701; Southern Express Co. v National Bank of Tifton, 4 Ga.App. 399, 61 S.E. 857; Jones v. Bibb Brick Co., 120 Ga. 321, 324, 325, 48 S.E. 25, and cases cited.

Where a summons of garnishment was served and no answer thereto was filed until several terms had passed, and no "reason legally sufficient to excuse the failure" to answer sooner was given, it was error to fail to strike the answer and to permit it then to be verified by the garnishee.

The court erred in dismissing the garnishment proceedings and in rendering judgment for the garnishee.

No legal and proper answer having been filed within the time provided therefor by law, upon proof that plaintiff had obtained judgment against the original defendant the court should have awarded judgment against the garnishee.

At the May term, 1921, the garnishee moved to dismiss the garnishment proceedings for certain reasons stated in the motion. This motion was overruled. Thereupon the garnishee filed exceptions pendente lite to this ruling, and in the cross-bill of exceptions he assigns error thereon. However the record shows that at the following December term the court did dismiss the garnishment proceedings; therefore the question raised by the cross-bill of exceptions is moot.

Additional Syllabus by Editorial Staff.

An attorney at law, as such, is not competent to verify an answer to a summons of garnishment.

Error from Superior Court, McIntosh County; W. W. Sheppard, Judge.

Action by W. H. Kittles against Robert Sallins, in which E. M Thorpe was garnished. Judgment for the garnishee, and plaintiff brings error, and the garnishee brings a cross-bill of exceptions. Judgment reversed, and cross-bill dismissed.

The main bill of exceptions in this case is as follows:

"Be it remembered that the case of W. H. Kittles against Robert Sallins, defendant, and E. M. Thorpe, garnishee returnable to the December term, 1918, of the superior court of McIntosh county, the same being a garnishment suit based upon an action then pending in the said superior court of McIntosh county, Ga., of W. H. Kittles against Robert Sallins, which said action was not disposed of until the December term, 1920, at which term judgment was obtained by the said W. H. Kittles against the said Robert Sallins.

Be it further remembered that at said December term, 1920, the garnishee, E. M. Thorpe, having failed to answer to the summons of garnishment served upon him, his attorneys, Messrs. Travis & Travis, filed an answer for the said E. M. Thorpe, garnishee, which answer was sworn to by John L. Travis. Motion to strike the said answer was made by plaintiff at said term, but on account of the absence of the attorney filing same no action was taken by the court at said term.

Be it further remembered that at the May term, 1921, of said court the plaintiff again moved to strike the said answer of the garnishee filed and verified by his attorney, at which time the garnishee offered to amend said answer by having the same sworn to by E. M. Thorpe, but said motion of the plaintiff prevailed, and the said answer was stricken by proper order of the court. The plaintiff then prayed judgment against the said E. M. Thorpe, garnishee, for the amount of the judgment obtained against the said Robert Sallins, to wit, $800 and interest from July 24, 1914, at the rate of 8 per cent. per annum, which prayer was granted, the

court rendering judgment in open court from the bench in favor of the plaintiff, and instructed plaintiff's counsel to prepare same, and same was prepared and signed by counsel for the plaintiff, but was not signed by his honor Walter W. Sheppard, judge presiding, the garnishee in the meantime having filed objections to the rendition of the said judgment.

Be it further remembered that one of the objections filed and insisted upon by the garnishee was that the affidavit for garnishment was made October 16, 1918, before the December term, 1918, and was not filed in the superior court until after the May term, 1919, and no service had been made of the garnishment summons until October 20, 1919, whereupon the plaintiff asked the court to have the former sheriff, S. J. Hagan, correct his return of service, and after the said S. J. Hagan had been sworn in open court, and it appeared that his return of October 20, 1919, was error, and should have been October 20, 1918, under order of his honor Walter W. Sheppard, judge presiding, said return was corrected and made to read October 20, 1918, by the said former sheriff.

The court then allowed the said answer filed by the attorneys of the garnishee to be amended by being sworn to by E. M. Thorpe, the garnishee, and to vacate the said order striking the answer, whereupon the plaintiff moved the court to strike the answer verified by the

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