Whitehead v. Patterson

16 S.E. 66, 88 Ga. 748, 1892 Ga. LEXIS 95

• Court: Supreme Court of Georgia
• Decided: February 19, 1892
• Status: Published

Opinion

Bleckley, Chief Justice.

1. The act of October 15, 1885, made an important change in the law of garnishment. It contemplates that there shall be no liability upon the bond given to dissolve a garnishment, unless the fund or property in the hands of the garnishee is adjudged to be subject to garnishment. Until this question has been adjudicated, it is not too late for the defendant in the garnishment proceeding to set up that no valid judgment against him for the plaintiff’s debt has been rendered, or that if rendered it has been discharged by release or otherwise. Consequently the court did not err in refusing to strike the answer filed by Patterson because not filed at the term to which the garnishment was returnable.

2. Nor, for the same reason, was there any error in overruling the motion to enter up judgment on the bond. This motion could not be grahted in the absence of a previous judgment disposing of the garnishment. The court may have given a wrong reason for denying the motion, but this was immaterial ; for upon the showing which was before the court, the motion was premature.

The act which controls the case will be found in Acts 1884-5, p. 96. Judgment affirmed.