Averback v. Spivey

49 S.E. 748, 122 Ga. 18, 1905 Ga. LEXIS 98

• Court: Supreme Court of Georgia
• Decided: January 30, 1905
• Status: Published

Opinion

Lamar, J.

In this case a .garnishment was sued out on a judgment, as provided in the Civil Code, §4705. By the last clause of § 4709, procéedings subsequent to the affidavit and summons “ shall be the same as prescribed in cases of attachment.” By the Civil Code, § 4551, the answer in all cases is in time if made on the first day of the second term of the superior court after service of the summons. Sanders v. Miller, 60 Ga. 554. Jarrell v. Guann, 105 Ga. 141; Atlanta Journal v. Brunswick Pub. Co., 111 Ga. 722. Under these decisions and sections of the'code, the garnishee, therefore, had until the first day of the February term, 1903, in which to answer, and the default judgment entered during the November term, 1902, was void (Liverpool Co. v. Sav. Grocery Co., 97 Ga. 747), unless the act establishing the city court of Moultrie has modified the general law contained in the code. Section 35 of that act (Acts of 1901, p. 143) provides for an appearance and a trial term, and declares that “ in cases in which there is no plea or defense filed on the call of the appearance docket . . a judgment may be rendered by the court . . at said appearance term.” Section 15 provides that the laws governing pleading and practice in the superior court shall be applicable to said court, unless otherwise provided in the act; section 18, that all laws upon the subject of attachments and garnishments in the superior court shall apply to said city court so far as the nature of said city court will admit. By section 19 it is further enacted, “that the garnishment proceeding in the city court shall be conformable to the laws on the subject applicable in the superior court.” It is claimed that under this statute a failure of the garnishee to answer on or before the call of the appearance docket at the first term after service of the summons authorizes a judgment against him. There is language in the act which might admit of such a construction. But considering the nature of the garnishment proceeding, and the relation of the garnishee to the case, and giving full effect to the provision of section 19, which expressly declares that the “garnishment pro-, ceeding in the city court shall be conformable to the laws on the subject applicable in the superior court,” it appears that whatever might be the rule as to other classes of cases, or in other city courts (Dodson v. Harris, 114 Ga. 968; Mathews v. Bishop, 106 ), tbe General Assembly intended here to give to the garnishee all of the rights which he had under the code. Among these was the privilege to have the case continued until the first day of the second term, where there had been a failure to answer at the first term. Having promptly made application for this privilege, the garnishee could not be prejudiced by reason of the failure to answer during the time the application was under consideration by the court. The judge did not err in vacating the judgment. This conclusion makes it unnecessary to consider whether the sickness of a member of the garnishee’s family constituted such providential cause or excusable neglect as would authorize the court in a proper proceeding to set aside the judgment. See Phillips v. Taber, 86 Ga. 566 (4); Leaming v. McMillan, 59 Ark. 152.

Judgment affirmed.

All the Justices concur.