Nashville, C. & St. L. Ry. v. Brown

• Decision Date: 11 February 1908
• Docket Number: 819.
• Citation: 60 S.E. 319,3 Ga.App. 561
• Parties: NASHVILLE, C. & ST. L. RY. v. BROWN.
• Court: Georgia Court of Appeals

60 S.E. 319

3 Ga.App. 561

NASHVILLE, C. & ST. L. RY. v. BROWN.

No. 819.

Court of Appeals of Georgia

February 11, 1908

Syllabus by the Court.

When an attachment is levied by serving summons of garnishment, two distinct cases arise-the one between the plaintiff and the defendant, the other between the plaintiff and the garnishee though the latter is subsidiary to the former.The case against the garnishee is not ripe for final trial and judgment until the plaintiff has obtained and produces a valid enforceable judgment against the defendant or the fund impounded.

[Ed Note.-For cases in point, seeCent. Dig. vol. 24 Garnishment, § 327.]

The judgment contemplated as the indispensable prerequisite to a final judgment against the garnishee is a formal, duly entered judgment-one capable of present enforcement.

(a) In justice courts"resort must be had to the docket entry and to it alone, in order to determine in a given case whether or not there was a valid and lawful judgment."

(b)"A mere verbal announcement by a justice of the peace after the trial of a cause as to what conclusion he has reached does not in law constitute a judgment."A judgment of a justice of the peace cannot be enforced by execution or "in any other way known to the law" until it has been entered on the docket.

(c) To allow a judgment to subject money in a garnishment case is to enforce it.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 31, Justices of the Peace,§§ 395-397.]

A justice of the peace has the power to amend a judgment rendered by himself in mere matters of form or otherwise not affecting its legal tenor or effect; but he has no power by amendment or otherwise to enlarge or diminish its original scope or to change it in any matter of substance.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 31, Justices of the Peace,§ 400.]

In an attachment case where summons of garnishment has issued, it is grossly irregular to render a single judgment against the defendant and the garnishee jointly.As against the garnishee, at least, such a judgment is absolutely void.It cannot by amendment be converted into separate judgments, the one against the defendant, the other against the garnishee.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 31, Justices of the Peace,§ 400.]

Where, in an attachment case, summons of garnishment has issued and a joint judgment is entered against the defendant and the garnishee, and execution issues thereon, and is levied on the property of the garnishee, and the garnishee files illegality on the ground that no valid judgment has been rendered against him, it is error on the hearing of the illegality for the magistrate to allow the judgment as entered to be so amended as to convert it into separate judgments, one against the defendant, the other against the garnishee, notwithstanding that at the time judgment was entered both cases were in default for lack of answer, and the justice announced judgments against the defendant and the garnishee separately.

(a) A default may be adjudged against the garnishee prior to the rendition or entry of judgment against the defendant in the main case; but such adjudication merely concludes the question that the garnishee is in possession of the funds or property sought to be impounded, and is not a final judgment.

(b) No final judgment capable of enforcement by execution can be rendered against the garnishee in the subsidiary action until after there has been a sufficient proper judgment rendered and entered against the defendant in the main action.

(c) A refusal to sustain the illegality filed by the garnishee was therefore erroneous; and the certiorari brought to correct this ruling should not have been overruled.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 24, Garnishment, §§ 329, 330.]

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

C. T. Brown sued out in a justice's court an attachment and caused summons of garnishment to issue to the Nashville, Chattanooga & St. Louis Railway.From a judgment of the superior court, on certiorari, sustaining the judgment in the justice's court for plaintiff, the railway company brings error.Reversed.

Tye, Peeples, Bryan & Jordan and Chas. A. Read, for plaintiff in error.

Maddox & Sims, for defendant in error.

POWELL J.

1.When an attachment is levied by service of summons of garnishment, two distinct cases arise-one between the plaintiff and the defendant, the other between the plaintiff and the garnishee.The defendant may by executing a dissolving bond make himself a party to the second or subsidiary suit, but, in the absence of this action on his part, it is not so.The garnishee is not a party to the attachment case, and has no interest in it until the judgment which may be obtained thereon is offered in evidence in the second suit as the basis for the judgment then sought against him; and then he may assail the judgment in the first suit on any ground which would render it void against the defendant or ineffectual to reach the fund in controversy.The garnishee has a right to demand, as a condition precedent to a final judgment against him, the exhibition of a judgment against the defendant of such force, validity, and efficacy that were the defendant to sue the garnishee upon the debt sought to be impounded by the garnishment the production of the judgment against the defendant would be a complete defense.The fact that the garnishee is in default for lack of answer in no wise diminishes this right.Ingram v. Jackson Merc. Co., 2 Ga.App. 218, 58 S.E. 372;Fagan v. Jackson, 1 Ga.App. 24, 57 S.E. 1052.Until a valid judgment against the defendant has been obtained, the case against the garnishee is not ripe for final adjudication.

2.While, as held by the Supreme Court in Morrison v Hilburn,126 Ga. 114, 54 S.E. 938, "if the judgment against the defendant has been rendered in the court in which the garnishment is pending, the justice may look to such judgment to ascertain the amount of the judgment to be rendered against the garnishee, without such judgment being formally offered in evidence," still the judgment against the defendant must exist in such form that it can be "looked to"; that is to say, must be subject to inspection, and must not rest solely in the mind of the justice, nor in a mere oral announcement.It must be in such shape that the garnishee can see and know that he will be protected by it; in such shape that he can plead it in bar against the defendant, if the defendant should thereafter seek to hold him liable on the debt seized by the garnishment.It is the duty of justices of the peace "to keep a docket of all causes brought before them, in which must be entered the names of the parties, the returns of the officer, and the entry of the judgment, specifying its amount and the day of its rendition."Civ. Code 1895, § 4082(6)."It cannot then be doubted that resort must be had to the docket entry, and to it alone, in order to determine in a given case whether or not there was a valid and lawful judgment."McCandless v. Inland Acid Co.,112 Ga. 291, 298, 37 S.E. 419, 422."A mere verbal announcement by a justice of the peace after the trial of a cause as to what conclusions he has reached does not in law constitute a judgment.Such an announcement is certainly not a judgment upon which an execution can issue or which can be enforced in any way known to the law[italics ours], save by its being properly reduced to writing and signed by the magistrate."Hargrove v. Turner,108 Ga. 580, 582, 34 S.E. 1.(The statement as to the necessity for signing is, however, dictum and in conflict with an unbroken line of decisions by the Supreme Court.)The entry of the judgment by the justice of the peace when he renders the judgment is a judicial act, differing in this respect from the ministerial function performed by him in entering judgment upon the verdict of the jury in appeal.Scott v. Bedell,108 Ga. 205, 209, 33 S.E. 903.The case of Ryals v. McArthur,92 Ga. 378, 17 S.E. 350, holding that a justice may lawfully enter upon his docket in vacation a judgment announced by him in term time, is not in harmony with the logic of the decisions, both prior and subsequent, though in most of the subsequent casesthe Supreme Court has been able to distinguish it on its facts, without overruling it.Be this as it may, it is none the less true upon the authority already given that a judgment, though orally announced, is not in a position "to be enforced...