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Motion to set aside judgment (garnishment); from Richmond Superior Court-- Judge Anderson. December 16, 1952.
When construed most strongly against the pleader on demurrer, the motion to set aside the judgment of the Superior Court of Richmond County, dated May 23, 1952, alleges nothing more than that the garnishee upon receipt of the summons of garnishment wrote a personal letter to the Clerk of the Superior Court of Richmond County, enclosed the summons of garnishment and a check in the amount of $116.79, which represented the "proceeds due Robbie Young [the defendant] from the sale of his cotton," and that the clerk made an official entry upon "the issue docket or filing docket" that said sum had been tendered into court. Even if the letter could be construed to be a compliance with the requirements of Code 46-301 as to answering a summons of garnishment, which it cannot, it does not appear that the letter was filed or that the garnishee requested that it be filed as its answer in the proceedings. Under these circumstances it does not appear that the garnishee had complied with the provisions of Code 46-301 or 46-308, and the judgment by default entered on May 23, 1952, was proper; and the motion to set aside having shown no valid reason why such judgment should be set aside, the trial court erred in overruling the demurrers thereto. See Peterson v. Taylor, 15 Ga. 483 (60 Am. D. 705); Brinson v. Georgia Railroad Bank &c. Co., 45 Ga. App. 459 (165 S. E. 321).
On May 23, 1952, the Superior Court of Richmond County entered the following order: "There being no issuable defense or answer filed by or in behalf of the garnishee within the time allowed by law for the filing of such answer and said cause being in default and now at the May Term, 1952, of this court, proofs being submitted and it appearing that the plaintiff has obtained judgment from the Superior Court of Screven County, Georgia, in the sums hereinafter stated, judgment is hereby rendered in favor of the plaintiff against the garnishee for the full amount of principal and interest, attorney's fees and costs, for which judgment has been obtained against the defendant. Whereupon, it is considered, ordered and adjudged by the court that the plaintiff, E. M. Staley, do have and recover of the garnishee, S. M. Whitney Company, Inc., the sum of sixteen hundred nineteen and 04/100 ($1619.04) principal, and four hundred seventy-one and 02/100 dollars, interest up to date of this judgment, together with future interest on said principal at the rate of eight (8%) percent per annum until paid; and two hundred nine ($209.00) dollars, attorney's fees and eight and 50/100 ($8.50) dollars as costs on the original judgment against the defendant, and the further sum of -------- dollars and -------- cents as costs of this garnishment proceeding."
On August 28, 1952, the garnishee, S. E. Whitney Company Inc., filed its written motion to set aside the judgment of May 23, 1952. A rule nisi requiring E. M. Staley to show cause on September 12, 1952, why the judgment of May 23, 1952, should not be set aside was issued on the day the motion to set aside was filed. The allegations of the motion to set aside the judgment, as finally amended, were substantially as follows:
1. On October 20, 1951, movant was served with a summons of garnishment in the above-stated case, brought in the Superior Court of Screven County, that being the residence of the defendant Robbie Young. 2. That at the time of service of said summons movant had in its hands funds in the amount of $116.79 belonging to the said Robbie Young, representing proceeds from the sale of his cotton; and, in response to said summons, movant on November 16, 1951, issued its check for said amount to the Clerk of the Superior Court of Richmond County, Georgia, and mailed the sane to the clerk of that court, along with the response which was filed and became a part of the record in said case, as follows:
"S. M. Whitney Co., Inc.
Augusta, Georgia
November 16, 1951.
Clerk of Superior Court
Augusta, Georgia
Dear Sir:
We are enclosing herewith the summons of garnishment in connection with the Robbie Young case, and also are enclosing our check in the amount of $116.79, which represents proceeds due Robbie Young from sale of his cotton.
Trusting this will help straighten out the matter, and with best wishes,
Yours truly
S. M. Whitney Co., Inc.
/s/ C. B. Whitney
C. B. Whitney."
That at the time said funds were paid into court as shown, an official entry was made on the issue docket or filing docket in the office of the clerk of the superior court that said sum of $116.79 had been tendered into court by movant in said case, and said entry appeared on said docket at the time the said judgment was taken against movant. Paragraphs 3 and 4 were stricken by amendment. 5. The above-mentioned check has been deposited, paid, and charged to the account of movant, and the funds derived therefrom have not been refunded to movant. The said cheek was drawn by S. M. Whitney Co. Inc., on the Georgia Railroad Bank & Trust Company of Augusta, Georgia, and was made payable to the Clerk of Superior Court, Richmond County, and was endorsed by Dan J. O'Conner, Clerk Superior Court, for deposit in The Citizens & Southern National Bank. The proceeds of said check were paid to and received by the clerk of said court and are still held by him. 6. The movant heard nothing further about the said case and garnishment until August 26, 1952, at which time Mr. C. N. Wilds, a deputy sheriff of Richmond County, informed the movant that there had been placed in his hands for collection an execution issued against the movant in said case in favor of E. M. Staley for $1619.04 principal, $471.02 interest to date of judgment with future interest at 8 percent, $209 attorney's fees, and $8.50 costs. 7. Movant immediately examined the record in said case and found that the judgment entered against it, as herein shown, should be vacated and set aside by reason of the following defects apparent on the face of the record of said case which are not amendable, to wit: (a) Movant filed its timely response or answer to the summons of garnishment issued and served upon it in said case, as alleged in paragraph 6, showing an indebtedness to the defendant in the sum of $116.79 to which answer no exception or traverse was filed by the plaintiff, and said answer or response became and is a part of the pleadings and record in said case. (b) Movant contemporaneously with the filing of said answer or response paid to the clerk of said court said sum of $116.79, and the same was held by the clerk at the time the aforementioned judgment was taken by the plaintiff against the movant. (c) The plaintiff in said case filed no exception or traverse to the answer or response of movant to said summons of garnishment, and movant became discharged as to any liability to plaintiff over and above the said sum of $116.79 which had been paid into
court as alleged. (d) The plaintiff completely ignored the answer and response of movant to said garnishment and the payment by movant into court of the funds reached by said summons, which response or answer and which payment of funds appeared upon the face of the record in said case, and without further pleading entered up the judgment against the movant which the movant now seeks to have set aside and vacated. 8. Movant having omitted to verify its answer or response to said summons of garnishment, now offers to and does hereby verify said answer or response by adding thereto the following affidavit. (Here follows the affidavit of C. B. Whitney, president of S. M. Whitney Co., Inc.). 9. The defects appearing in the pleadings and upon the face of the record in said case are not amendable by the plaintiff, and movant is entitled to have said judgment against it set aside and vacated, or to have written off from the amount of the judgment that portion thereof in excess of $116.79.
The plaintiff's general and special demurrers to the motion to set aside the judgment were all overruled, and he assigns error thereon.
Fulcher, Fulcher & Hagler, George W. Fryhofer, contra.
J. Henry Howard, Harry H. Hunter, for plaintiff in error.
Saturday May 23 04:26 EDT

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