Warlick v. Neal Loan & Banking Co.

• Citation: 48 S.E. 402,120 Ga. 1070
• Parties: WARLICK et al. v. NEAL LOAN & BANKING CO.
• Decision Date: 12 August 1904
• Court: Supreme Court of Georgia

48 S.E. 402

120 Ga. 1070

WARLICK et al. v. NEAL LOAN & BANKING CO.

Supreme Court of Georgia

August 12, 1904

Syllabus by the Court.

1. A judgment against a garnishee, duly entered, is conclusive, as to him, that every jurisdictional allegation in the affidavit to obtain garnishment is true.

2. The filing by defendant of a bond to dissolve a garnishment different in its terms from the statutory bond for dissolution of a garnishment by the defendant, is no legal obstacle to the entering of a judgment against the garnishee.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by C. D. Warlick and others against the Neal Loan & Banking Company. From an order setting aside a judgment in favor of plaintiffs, they bring error. Reversed.

John L Hopkins & Sons, for plaintiffs in error.

Westmoreland Bros. and E. V. Carter, for defendant in error.

EVANS J.

On December 7, 1903, there came on to be tried in the city court of Atlanta a case in which C. D. Warlick and others were plaintiffs, and L. D. & A. C. Morris, a partnership, was the defendant. The trial resulted in a verdict in favor of the plaintiffs, and judgment was entered accordingly. There then came on to be heard another case, which was a garnishment proceeding against the Neal Loan & Banking Company, as garnishee, instituted by the plaintiffs in aid of the case first above referred to. The garnishment case was disposed of on the following day by the entering of a judgment against the garnishee, reciting the recovery by the plaintiffs in the other suit, and the amount of the judgment rendered in their favor; that the garnishee had filed an answer admitting indebtedness to the defendant firm, which answer had not been traversed; that a bond given to dissolve the garnishment was insufficient in law; and that accordingly judgment was rendered against the garnishee. On December 18, 1903, the Neal Loan & Banking Company filed a motion to set aside the judgment against it, which motion was met by both general and special demurrers filed in behalf of the plaintiffs. This motion came on to be heard on the following day, when the plaintiffs pressed their demurrers; but the court reserved its decision thereon, and the motion was heard on the merits. On January 4, 1904, the court rendered a judgment overruling the general demurrer, and also overruling certain grounds of the special demurrer. The court at the same time entered a judgment sustaining the motion to set aside the judgment which had been rendered against the Neal Loan & Banking Company as garnishee. To the action of the court in setting aside that judgment, as well as to the overruling of the plaintiffs' general demurrer and the above-mentioned grounds of their special demurrer, they duly excepted. The questions thus presented for our determination will be stated and disposed of in the discussion which follows.

1. The garnishee seeks to avoid a judgment rendered against it on the ground that the garnishment was sued out and served upon the garnishee before the filing of the main suit upon which the garnishment proceedings were based, and on the further ground that the garnishment had been dissolved previous to the judgment against it by the defendants in the main suit giving a statutory dissolution bond. The procedure selected by the garnishee to accomplish this result is a motion to set aside the judgment, as provided in Civ. Code 1895, § § 5362-5364. A motion to set aside a judgment must be based upon a defect, not amendable, which appears on the face of the record or the pleadings. Williams v. O'Neal, 119 Ga. 177, 45 S.E. 978; Sweat v. Latimer, 119 Ga 615, 46 S.E. 835. The main suit and the garnishment proceeding are separate and distinct. While it is true that the garnishment, where sued out in a pending action, is contingent on the pendency of the action as a condition precedent, yet, where the affidavit and bond have been filed, and the summons of garnishment has issued, it then becomes a proceeding entirely distinct from the main action. Its course is stayed until judgment has been had against the defendant in the main suit, and when this occurs the garnishment case becomes at once vitalized and active, and the issue, if any, raised by the answer of the garnishee and...