Cranford v. Dunson & Bros.

57 S.E. 1057, 1 Ga. App. 319, 1907 Ga. App. LEXIS 228

• Court: Court of Appeals of Georgia
• Decided: February 28, 1907
• Docket: 108
• Status: Published

Opinion

Hill, C. J.

J. E. Dunson & Brothers Company had a summons •of garnishment issued on a suit brought by them against Andrew Cranford, and this summons was served on J. E. Hudson. The garnishee acknowledged service of the summons, in writing, and filed an answer that property and money were in his hands belonging to the defendant. Jane Cranford, wife of the defendant, •claimed the property in the hands of the garnishee, and executed bond for the purpose of dissolving the garnishment. She also filed a traverse to the answer of the garnishee.. When the case came on for trial, the claimant stated to the court orally that inasmuch as she had given the bond to dissolve the garnishment, she asked that the money in the hands of the garnishee be paid over to her. On an issue as to the sufficiency of the bond, the court held that the bond was not sufficient; to which exceptions were taken pendente lite by the claimant. The court made no ruling on the motion of the claimant (so far as the record discloses) to have the money in the hands of the garnishee paid over to her. The claimant further moved to dismiss the garnishment proceedings, on the ground that there was no return by an officer showing service of the summons of garnishment, and that the acknowledgment by the garnishee, of the service of the summons of garnishment, was not sufficient. The court overruled this motion, and the claimant excepted. On the close of all the evidence in the case, the claimant made a motion to the court to direct a verdict in her behalf, on the ground that the acknowledgment of service of the summons of garnishment by the garnishee was not sufficient, as the law requires that such service should have been made by some proper officer. This motion was refused by the court, and the claimant excepted. The case went to the Jury on the issue on the claim and the traverse to the garnishee’s answer, filed by the claimant, and the Jury found against the traverse of the claimant, and also found the garnished property subject to garnishment. The claimant filed a motion for a new trial, assigning error in the Judgment of the court overruling each of her above specified motions on the grounds as therein stated, and also on the usual and formal grounds. The court overruled the motion, and the claimant sued out a writ of error to this court.

1. We do not think it necessary to decide the question made by the motion of the claimant, that the court should have required the property in the hands of the garnishee to be paid over to her, she having given bond to dissolve the garnishment; nor do we think it material to decide on the correctness of the ruling made by the court, that the bond was not sufficient. A decision on these ques-. tions is rendered unnecessary by the fact that the Jury found a verdict agaihst the right of the claimant to the property in question. Unless this verdict is erroneous on the merits of the claim case, it would be useless to decide whether the claimant was, entitled to have had the money caught, by the garnishment paid over to her, on the execution of her bond to dissolve the same.

2. We think that the garnishee’s acknowledgment of the service of the summons of garnishment was sufficient. The service of. such original summons on the garnishee by an officer was a matter in which the garnishee was interested, and he had a right to waive such service, and, in lieu thereof, to make an acknowledgment of service on the original summons. Civil Code, §4983; Dooly v. Miles, 101 Ga. 797. But even if the garnishee did not have such right, the fact that he afterward appeared in court and made an answer to said summons of garnishment, on the merits, admitting in such answer property and money in his hands, would be a waiver of any objection to the sufficiency of such service. Certainly the claimant could not object to the sufficiency of such service after giving a bond to dissolve the garnishment, and asking the court to pay over to her the money and property disclosed by the answer of the garnishee. Civil Code, §4981.

3. The direction of a verdict for the claimant was properly refused. As above decided, the garnishee had the right to acknowledge service of the summons óf garnishment. In any event, this was not a matter that concerned the claimant. The issue made by the traverse of the answer 'of the garnishee .by the claimant being as to whether the property in his hands belonged to the defendant in fi. fa., and the issue between the plaintiff in fi. fa. and the claimant being one of title to said property, the verdict of the jury finding against such traverse, and further that the property garnished was subject to garnishment, was in form correct; and it was fully supported by the evidence. Judgment affirmed.