Carroll v. McCoy

35 Ga. 278

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Lumpkin, C. J.

There is one thing rather singular, Carroll in his deposition states, that McCoy’s garnishment was served upon him first. Upon this subj ect he was manifestly in error, as the return of service on the different garnishments by the proper officer, abundantly proves. How he came to fall into the mistake, I do not understand; or whether the Court below put his decision upon this admission, is not stated. But we repeat, the fact is otherwise, and he ought to be relieved against the liability, if he suffered from the mistake in his deposition. But even if we are wrong as to dates, still we think the judgment was erroneous.

The Justices Court had jurisdiction.of the subject, and all the parties were notified of the pendency of the proceedings there; under the order of this Court, the note was turned over to the Constable, and ordered to be sold, and subsequently paid off to the purchaser by Carroll. Under these circumstances it was manifestly wrong for the Judge to hold him liable to pay the money a second time, and that, too, to a creditor whose garnishment was not served until after those which were returnable to the Justices Court, upon which the note was sold.