Albany & Northern Railway Co. v. Dunlap Hardware Co.

63 S.E. 1124, 6 Ga. App. 17, 1909 Ga. App. LEXIS 163

Opinion

Powell, J.

A default judgment was rendered against the railway company as garnishee, and execution was issued and levied upon its property; whereupon it filed an affidavit of illegality, containing a number of grounds: In the record in the garnishment case was an entry of service by the deputy sheriff of Worth county, showing that service of the summons of garnishment had been made on the agent of the railway company. One of the grounds of the illegality was that this entry was untrue; that no service had been made upon the company or its agent, that it had no notice of the proceedings, and had not had its day in court. In connection with this ground of the illegality there vas a traverse of the return of the sheriff. To this traverse the sheriff and also the administrator of the deputy sheriff (he having died) were made parties. The issue formed upon -the traverse was separately heard before a jury, and a verdict was rendered finding the return to be true. Upon this issue a motion for a new trial was made and overruled; and to this action of the court the present writ of error is brought. The case is controlled by State Mutual Life Asso. v. Kemp, 115 Ga. 355 (41 S. E. 652), and Ross v. Mercer, 115 Ga. 353 (41 S. E. 594). Upon the authority of these cases the writ of error is dismissed, on the ground that it was prematurely brought.

Writ of error dismissed, with direction.