Rowe v. Peoples Credit Clothing Co.

140 S.E. 800, 37 Ga. App. 535, 1927 Ga. App. LEXIS 396

• Court: Court of Appeals of Georgia
• Decided: December 16, 1927
• Docket: 18186
• Status: Published

Opinion

Bell, J.

1. “A garnishment proceeding makes a case separate and distinct from that in aid of which it is instituted. . . The defendant in the main ease is not a party to a garnishment which is undissolved; and in such a case he will not be heard to complain of the judgment rendered in favor of the plaintiff against the garnishee.” Jones v. Maril, 19 Ga. App. 216 (1, 2) (91 S. E. 445); Farmers & Traders Bank v. University Publishing Co., 9 Ga. App. 128 (5) (70 S. E. 602); Warner v. Burkhalter, 22 Ga. App. 71 (2) (95 S. E. 470).

Decided December 16, 1927. Douglas & Douglas, D. D. Andrews, for plaintiff in error. Carl B. Copeland, Q. N. Bynum, contra.

2. “A third person not a party to the record can not go into court and move to set aside a judgment which is not against him.” Merchants &c. Bank v. Haiman, 80 Ga. 624 (2) (5 S. E. 795); Jones v. Smith, 120 Ga. 642 (6) (48 S. E. 134); Bruce v. Neal Bank, 147 Ga. 392 (94 S. E. 241); Chapman v. Taliaferro, 1 Ga. App. 235, 238 (58 S. E. 128).

3. Applying the above principles, the municipal court did not err in refusing the defendant’s motion, based upon his discharge in bankruptcy, to set aside the judgment in favor of the plaintiff against the garnishee. This case should be distinguished from Warthen v. Melton, 132 Ga. 113 (63 S. E. 832, 131 Am. St. R. 184), in which a judgment against the garnishee was set aside on the petition of the defendant on the ground of fraud. Moreover, in that case no question was raised as to whether the judgment against the garnishee could be set aside at the instance of the defendant, who was not a party thereto.

4. The superior court did not err in dismissing the certiorari.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.