Simerly v. Brooks

93 S.E. 1017, 21 Ga. App. 169, 1917 Ga. App. LEXIS 500

• Court: Court of Appeals of Georgia
• Decided: November 1, 1917
• Docket: 8582
• Status: Published

Opinion

Luke, J.

1. A surety upon a bond dissolving a garnishment may by affidavit of illegality successfully attack the judgment rendered against him as such surety, by alleging and proving that it was rendered without the introduction of the judgment against the garnishee. Smith v. Kennedy, 125 Ga. 830 (54 S. E. 731).

2. Before judgment can be rendered upon a bond dissolving a garnishment, two prior judgments must have been rendered, — first, a judgment in the main action; and second, a judgment declaring the money or property subject. National Surety Co. v. Medlock, 2 Ga. App. 669 (58 S. E. 1131); Middleton v. Johnson, 19 Ga. App. 478 (91 S. E. 785). Upon the petition and the answer it was not error for the court to sustain the certiorari.

Judgment affirmed.

Wade, C. J., and Jenlcins, J., concur.