Carter v. First National Bank

Court of Appeals of Georgia

Carter v. First National Bank

82 S.E. 628, 15 Ga. App. 55, 1914 Ga. App. LEXIS 14

CourtCourt of Appeals of Georgia

DecidedAugust 22, 1914

Docket5726

StatusPublished

This text of 82 S.E. 628 (Carter v. First National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. First National Bank, 82 S.E. 628, 15 Ga. App. 55, 1914 Ga. App. LEXIS 14 (Ga. Ct. App. 1914).

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Opinion

Wade, J.

Under the provisions of section 5294 of the Civil Code (1910), if a garnishee “shall answer -truly that he owes the defendant nothing,’’ and “.shall have to.incur any expense in making his or her answer to the garnishment, . . the amount so incurred shall be taxed in the bill [56]*56of costs, under the approval of the court, and he paid by the party cast in the suit, as other costs are now paid.” The provision to cover the expense in making the answer being mandatory, it was error, in a case where the answer of the garnishee denying any indebtedness was, in an issue formed upon a traverse, found to be true, to refuse to tax as costs any allowance whatever for attorney’s fees, where the evidence as to the service of the attorney was undisputed. Under the verbiage of section 5294, the discretion involved in the approval of the trial judge is addressed to fixing the amount of expense to be allowed, and does not extend to or include the right to deny such expense altogether.

Decided August 22, 1914.

Taxation of costs; from city court of Sandersville—Judge Phillips presiding. April term, 1914.

J. J. Harris, for plaintiff in error. M. L. Gross, contra.

Judgment reversed.

Roan, J., absent.

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Wade, J.

Under the provisions of section 5294 of the Civil Code (1910), if a garnishee “shall answer -truly that he owes the defendant nothing,’’ and “.shall have to.incur any expense in making his or her answer to the garnishment, . . the amount so incurred shall be taxed in the bill [56]*56of costs, under the approval of the court, and he paid by the party cast in the suit, as other costs are now paid.” The provision to cover the expense in making the answer being mandatory, it was error, in a case where the answer of the garnishee denying any indebtedness was, in an issue formed upon a traverse, found to be true, to refuse to tax as costs any allowance whatever for attorney’s fees, where the evidence as to the service of the attorney was undisputed. Under the verbiage of section 5294, the discretion involved in the approval of the trial judge is addressed to fixing the amount of expense to be allowed, and does not extend to or include the right to deny such expense altogether.

Decided August 22, 1914.

Taxation of costs; from city court of Sandersville—Judge Phillips presiding. April term, 1914.

J. J. Harris, for plaintiff in error. M. L. Gross, contra.

Judgment reversed.

Roan, J., absent.

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Bluebook (online)

82 S.E. 628, 15 Ga. App. 55, 1914 Ga. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-first-national-bank-gactapp-1914.