Kittles v. Thorpe

Court of Appeals of Georgia

Kittles v. Thorpe

114 S.E. 228, 29 Ga. App. 146, 1922 Ga. App. LEXIS 121

CourtCourt of Appeals of Georgia

DecidedOctober 5, 1922

Docket13345, 13368

StatusPublished

Cited by4 cases

This text of 114 S.E. 228 (Kittles v. Thorpe) 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.

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Kittles v. Thorpe, 114 S.E. 228, 29 Ga. App. 146, 1922 Ga. App. LEXIS 121 (Ga. Ct. App. 1922).

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Opinion

Bloodworth, J.

(After stating the foregoing facts.) To what is said in the headnotes it is only necessary to add the following: During the years covered by the proceedings in this case the terms of the superior court of McIntosh county were held in May and December of each year. Where a summons of garnishment was served on October 20, 1918, in a case pending in that court, it was the duty of the person so served to answer at the December term following, or at the May term, 1919. Civil Code (1910), §§ 5269, 5097; Averback v. Spivey, 122 Ga. 18 (49 S. E. 748). In the case under consideration the garnishee did not attempt to make answer until the December term, 1920, and the answer then filed was sworn to by an attorney at law. This was not sufficient, as an attorney at law, as such, is not competent to verify an answer to a summons of garnishment. Plant v. Mutual Life Ins. Co., 92 Ga. 636 (2) (19 S. E. 719); Central of Ga. Ry. Co. v. Dickerson, 15 Ga. App. 293 (2), 301 (82 S. E. 942). Even if the answer filed in this case could have been amended and verified by the garnishee had it been filed in time, it was not so filed, and no “reason legally sufficient to excuse the failure ” to make the answer prior to that time was given. In Jones v. Bibb Brick Co., 120 Ga. 321 (9) (48 S. E. 25), the Supreme Court held: “ The garnishee is required by statute to answer at the first term. After the second term the court has no discretion but can only allow the answer to be then filed for some legally sufficient reason sufficient to excuse the failure.” In O’Neill Mfg. Co. v. Ahrens & Ott Mfg. Co., 110 Ga. 656 (3) (36 S. E. 66), the Supreme Court said: “Where a garnishee was in default in making answer at the term at which he was directed so to do, and also at the next term thereafter, there was no error, [150]*150after the lapse of several other terms, in refusing to allow the garnishee to then answer the garnishment.” In the case just cited the Supreme Court further said: “ It is insisted by counsel for plaintiff in error that it should have been allowed to file its answer nunc pro tunc at the term of the court at which this case was tried. No sufficient reason appearing in the record for allowing the garnishee to file its answer after it was in default, the court was clearly right in rejecting the same. This does not seem to be a matter even in the discretion of the court.” See also Mashburn v. Harrell, 13 Ga. App. 327, 328 (77 S. E. 307); Smith v. Monroe Oil & Fertilizer Co., 20 Ga. App. 487 (93 S. E. 105); Bearden v. Metropolitan Street Railroad Co., 82 Ga. 605 (9 S. E. 603); Mutual Life Ins. Co. v. Moss, 93 Ga. 272 (20 S. E. 308). Under the rulings in the cases cited above the court erred in failing to strike the answer of the garnishee and in permitting it to be verified by the garnishee.

Judgment reversed on the main bill of exceptions; cross-bill dismissed.

Broyles, G. J., and Lulce, J., concur.

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Bloodworth, J.

(After stating the foregoing facts.) To what is said in the headnotes it is only necessary to add the following: During the years covered by the proceedings in this case the terms of the superior court of McIntosh county were held in May and December of each year. Where a summons of garnishment was served on October 20, 1918, in a case pending in that court, it was the duty of the person so served to answer at the December term following, or at the May term, 1919. Civil Code (1910), §§ 5269, 5097; Averback v. Spivey, 122 Ga. 18 (49 S. E. 748). In the case under consideration the garnishee did not attempt to make answer until the December term, 1920, and the answer then filed was sworn to by an attorney at law. This was not sufficient, as an attorney at law, as such, is not competent to verify an answer to a summons of garnishment. Plant v. Mutual Life Ins. Co., 92 Ga. 636 (2) (19 S. E. 719); Central of Ga. Ry. Co. v. Dickerson, 15 Ga. App. 293 (2), 301 (82 S. E. 942). Even if the answer filed in this case could have been amended and verified by the garnishee had it been filed in time, it was not so filed, and no “reason legally sufficient to excuse the failure ” to make the answer prior to that time was given. In Jones v. Bibb Brick Co., 120 Ga. 321 (9) (48 S. E. 25), the Supreme Court held: “ The garnishee is required by statute to answer at the first term. After the second term the court has no discretion but can only allow the answer to be then filed for some legally sufficient reason sufficient to excuse the failure.” In O’Neill Mfg. Co. v. Ahrens & Ott Mfg. Co., 110 Ga. 656 (3) (36 S. E. 66), the Supreme Court said: “Where a garnishee was in default in making answer at the term at which he was directed so to do, and also at the next term thereafter, there was no error, [150]*150after the lapse of several other terms, in refusing to allow the garnishee to then answer the garnishment.” In the case just cited the Supreme Court further said: “ It is insisted by counsel for plaintiff in error that it should have been allowed to file its answer nunc pro tunc at the term of the court at which this case was tried. No sufficient reason appearing in the record for allowing the garnishee to file its answer after it was in default, the court was clearly right in rejecting the same. This does not seem to be a matter even in the discretion of the court.” See also Mashburn v. Harrell, 13 Ga. App. 327, 328 (77 S. E. 307); Smith v. Monroe Oil & Fertilizer Co., 20 Ga. App. 487 (93 S. E. 105); Bearden v. Metropolitan Street Railroad Co., 82 Ga. 605 (9 S. E. 603); Mutual Life Ins. Co. v. Moss, 93 Ga. 272 (20 S. E. 308). Under the rulings in the cases cited above the court erred in failing to strike the answer of the garnishee and in permitting it to be verified by the garnishee.

Judgment reversed on the main bill of exceptions; cross-bill dismissed.

Broyles, G. J., and Lulce, J., concur.

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114 S.E. 228, 29 Ga. App. 146, 1922 Ga. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kittles-v-thorpe-gactapp-1922.

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