Milton County Bank v. Bagwell

Court of Appeals of Georgia

Milton County Bank v. Bagwell

165 S.E. 151, 45 Ga. App. 450, 1932 Ga. App. LEXIS 359

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1932

Docket21909

StatusPublished

This text of 165 S.E. 151 (Milton County Bank v. Bagwell) 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

Milton County Bank v. Bagwell, 165 S.E. 151, 45 Ga. App. 450, 1932 Ga. App. LEXIS 359 (Ga. Ct. App. 1932).

Pincite

Opinion

Jenkins, P. J.

1. Under the Civil Code (1910), § 5284, a garnishee, if accessible, must be given notice of a traverse to his answer. If no such notice is given a judgment against the garnishee is void (Civil Code of 1910, § 5286), and may be attacked by affidavit of illegality. Haney v. Owens, 39 Ga. App. 462 (147 S. E. 720). And see Payne v. Brown Construction Co., 44 Ga. App. 592 (3) (162 S. E. 410).

2. Mere presence of the garnishee in the courtroom at the time the issue made by the traverse to his answer of no indebtedness was tried and judgment rendered against him- would not dispense with the right to previous written notice of the traverse as required by the Civil Code, § 5284 (Vaughan v. Bank of Cobbtown, 14 Ga. App. 9, 79 S. E. 1130), or amount to an appearance and a waiver of such service. Civil Code (1910),.| 5559.

3. Since it appears, without dispute, that notice of the traverse to his answer was never served upon the garnishee in the instant case, and it does not appear that he was inaccessible, the verdict in favor of his affidavit of illegality was authorized.

Judgment affirmed.

Stephens and Sutlon, JJ., concur.

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