Hamby Mountain Gold Mines, Ltd. v. Findley

11 S.E. 775, 85 Ga. 431

• Court: Supreme Court of Georgia
• Decided: May 7, 1890
• Status: Published

Opinion

Blandford, Justice.

The defendant in error sued out a summons of garnishment to the plaintiff in error, and served it with notice to produce all the books of the corporation, including stock-ledger and all other books of' every description whatever. When the case was called in court, the plaintiff in error not having responded to the notice, it being a foreign corporation and resident in England, upon motion of the defendant in error, the court ordered that the defendant in error take judgment against the garnishee, the plaintiff' in error, without more. In this we think the court did wrong. The record shows that the plaintiff in error had answered, by its agent, the summons of garnishment, denying that it had anything in its hands belonging to Mappin, the debtor, — any money, property or other effects whatever, at any time. There was a traverse filed by Findley to the answer of the garnishee; and the court, without more, upon the bare statement by Findley, directed a verdict in his favor. In Parish v. Weed Sewing Machine Co., 79 Ga. 682, this court held that “ The code, in §§3508, 8510, contemplates a peremptory requirement by the court to produce the books or papers specified in the notice, or some of them, before there can be a failure or refusal ‘to comply with such order,’ so as to entitle the adverse party, if plaintiff, to a judgment as by default, or if defendant, to a judgment as in case of nonsuit.”

It furthermore appeal’s in this case that the notice to produce the books and papers of the plaintiff company is too extensive in range, and as to a part of it, too vague in description. The court, before requiring the peremptory order to produce the books or papers of the adverse party, should satisfy himself of the necessity for such production. It is very clear from the notice in this case that many of the books required to be produced could not have availed the defendant in error anything if they had been produced; and we think that none ought to have been required to be produced except those showing dealings between the company and the debtor, if any such existed. So we think the judgment of the court below, allowing and directing the verdict of the jury, should be Reversed.