Progressive Finance Co. v. Longleaf Lumber Co.

• Decision Date: 24 October 1963
• Docket Number: No. 1,No. 40373,40373,1
• Citation: Progressive Finance Co. v. Longleaf Lumber Co., 108 Ga.App. 555, 134 S.E.2d 63 (Ga. App. 1963)
• Parties: PROGRESSIVE FINANCE COMPANY, Inc. v. LONGLEAF LUMBER COMPANY, Inc
• Court: Georgia Court of Appeals

Page 63

134 S.E.2d 63

108 Ga.App. 555

PROGRESSIVE FINANCE COMPANY, Inc. v.LONGLEAF LUMBER COMPANY, Inc.

No. 40373.

Court of Appeals of Georgia, Division No. 1.

Oct. 24, 1963.

Syllabus by the Court

Where, on a date prior to that shown on a summons of garnishment as the date on which the garnishee is required to make answer what funds of the judgment debtor are in its hands, a default judgment is entered up against it, the garnishee is entitled on motion to have such judgment set aside.

Progressive Finance Co., Inc. instituted a garnishment proceeding in the Superior Court of Stewart County based on a default judgment against Albert Bradshaw, Jr.The affidavit, bond and summons of garnishment were filed October 16, 1962.Summons was served on the garnishee on October 23, 1962 calling upon it to 'be and appear at the January term of the Stewart Superior Court to be held in Lumpkin, Georgia, on the second Monday in January, 1963 * * *' A default judgment was rendered against the garnishee on May 16, 1963.On June 19, it filed a motion in arrest of judgment.Upon the hearing general and special demurrers to the motion in arrest were overruled, the motion was granted, and the default judgment set aside.The exceptions are to these rulings.

Jesse DuBose, Lumpkin, for plaintiff in error.

Jesse G. Bowles, Cuthbert, for defendant in error.

RUSSELL, Judge.

A motion in arrest of judgment will lie for any defect not amendable appearing on the face of the record.Code§ 110-702.A defect in the process of the court is good ground for such a motion if it is not a mere irregularity such as may be cured by the judgment.Hartridge v. McDaniel, 20 Ga. 398(3).It appears from the record here that the motion in arrest of judgment is based in part at least upon the fact that the summons of garnishment, which is the only process in such a proceeding, called on the garnishee to answer at the January, 1963 term of court, although at the time this action was filed Code Ann. § 46-105 had been amended (Ga.L.1962, pp. 717, 718), so that instead of the law requiring the garnishee as formerly to appear at the next term of court it now requires him to make answer not sooner than 30 days or later than 45 days after the date of the service of the summons.The Superior Court of Stewart County has only two terms per year, commencing on the second Mondays in January and July.Under the former law the garnishee had until the first day of the second term after service in which to answer, Peacock v. Walker, 213 Ga. 628, 100 S.E.2d 575, which in this case would have been the second Monday in July, 1963.The garnishee actually did appear in June, 1963 for the purpose of making answer and discovered that a default judgment had been entered up a month before.

While legal service of the summons of garnishment satisfies the requirement of due process, and while as to a defaulting garnishee formal motion and service is not necessary before the entry of a default judgment, the summons must itself in order to satisfy the requirements of due process apprise the defendant not only of the nature of the claim against him and the relief sought, but also the time and place of hearing.Henderson v. Mutual Fertilizer Co., 150 Ga. 465(2, 3), 104 S.E. 229.In the present case, as the trial court correctly observed in his order arresting the judgment, had the garnishee appeared on the first day indicated by the summons he would still have been in default under the statute as it existed at that time.

Where process directs the defendant to appear at a term of court subsequent to the term at which the case is properly returnable, he is entitled to rely upon the contents of the process and is protected by his obedience to it; the case will accordingly be treated as to him as one returnable to a later term of court.Welch v. Singleton, 95 Ga. 519, 20 S.E. 496.'In these...