Leake v. Tyner

• Decision Date: 01 March 1901
• Citation: 112 Ga. 919,38 S.E. 343
• Parties: LEAKE . v. TYNER.
• Court: Georgia Supreme Court

38 S.E. 343

112 Ga. 919

LEAKE .

v.TYNER.

Supreme Court of Georgia.

March 1, 1901.

GARNISHMENT—TRAVERSE OF ANSWER PARTIES—CERTIORARI. The defendant in fi. fa. is not a party in the trial of an issue raised by a traverse of the answer of a garnishee by the plaintiff in fi. fa. when the garnishment has not been dissolved, and a petition presented by the party first men tioned, to have such trial reviewed by a writ of certiorari, cannot be maintained; aliter, when he has dissolved the garnishment in the manner pointed out by law. (Syllabus by the Court.)

Error from superior court. Bibb county; W. H. Felton, Judge.

Action by H. G. Leake against G. D. Tyner. Judgment for plaintiff. Issue of garnishment Judgment against garnishee. Tyner brings error. Motion to dismiss certiorari denied, and plaintiff brings error. Reversed.

Hardeman, Davis, Turner & Jones, for plaintiff in error.

M. Felton Hatcher and Guerry & Hall, for defendant in error.

LITTLE, J. Leake, as administrator, obtained a judgment against Tyner, defendant, and on this judgment instituted garnishment proceedings, causing the Southern Railway Company to answer what it was indebted to Tyner, or what effects of defendant it had in Its hands. The garnishee answered that it was indebted to the defendant In fi. fa. in a given sum, but that the amount for which it was so indebted was for wages of said defendant. This answer was traversed, the plaintiff denying that the sum admitted by the garnishee to be due to the defendant in fi. fa. was for wages as a laborer, and a trial was had on the issue whether the indebtedness was exempt from garnishment. The jury returned a verdict that the amount admitted to be due was subject to the process of garnishment, and Tyner, the defendant in fi. fa., presented a petition for certiorari, which was sanctioned. When the case was called in the superior court, Leake, the defendant in certiorari, filed a motion to dismiss the petition for certiorari on several grounds, one of which was that it did not appear that Tyner, the defendant in fi. fa., was a party to the cause in the justice's court and, not being such, he had no right to file the petition. This motion the court overruled, and the defendant in certiorari excepted. After considering the case on the answer of the justice, the court passed an order sustaining the certiorari, and discharged the garnishee from all further liability, to which judgment Leake excepted. We are of the opinion that the trial judge should have dismissed the certiorari on the motion of the defendant therein, because the issue on the trial in the justice's court was between the plaintiff in fl. fa. and the garnishee. In the case of Foster v. Haynes, 88 Ga. 240, 14 S. E. 570, it was ruled by this court that the defendant in fl. fa. is not a party to a garnishment which is undissolved, and that on a finding by the jury against the garnishee on the trial of an issue made on his answer the debtor (defendant in fl. fa.) has no right to a new trial on his own motion, he not having been made a party to the case by any order of court If the defendant in fl. fa. is not entitled to move to set aside a verdict and ask for a new trial of the issue made ona traverse of an answer of the garnishee by the plaintiff, clearly he Is not entitled to the writ of certiorari to have a trial had on that issue reviewed. This is so because he was no party to the case which was tried, the issue being between the plaintiff in fl. fa. and the garnishee alone. This court further ruled on this subject, in the case of ...