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TOWN FINANCE & THRIFT CORPORATION v. FRANKLIN LIFE INSURANCE COMPANY.
37231.
Garnishment; traverse and motion to set aside judgment. Fulton Civil Court. Before Judge Henson. April 10, 1958.
GARDNER, Presiding Judge.
Under the record of this case the Judge of the Civil Court of Fulton County did not abuse his discretion in vacating and setting aside the previous judgment of that court, during the same term, on the issue under consideration.
Town Finance & Thrift Corporation, hereinafter called the plaintiff in execution, filed an affidavit and bond for garnishment in the Civil Court of Fulton County alleging that Theodore R. Melcher, hereinafter called the defendant in execution, was indebted to the plaintiff in execution in the amount of $1,350 plus $8.50 costs. The plaintiff in execution then caused a summons of garnishment to issue to Franklin Life Insurance Company, herein after called the garnishee.
A deputy marshal entered a statement on the affidavit and bond for garnishment to the effect that the garnishee had been served by serving the affidavit and bond on Mrs. Grant, its agent. The garnishee made no answer, whereupon a Judge of the Civil Court of Fulton County entered a judgment in favor of the plaintiff in execution.
The garnishee filed a traverse of service and a motion to set aside judgment on March 31, 1958. The traverse and motion to set aside came on for hearing before another Judge of the Civil Court of Fulton County without the intervention of a jury. Counsel for the plaintiff made a motion to dismiss the garnishee's motion to set aside the judgment on the ground that it stated no cause or basis for the relief sought. The plaintiff in execution also made a motion to dismiss the traverse of service for the reason that no process was attached and no proper service was had. The court withheld a ruling on these two motions and proceeded with the evidence and argument. On August 10, 1958, the trial judge entered the following judgment: "That plainfiff in execution's motion to strike the traverse to the return of service be sustained and said traverse is stricken; that garnishee's motion to set aside the judgment be sustained and the judgment entered March 4, 1958, is vacated and set aside at plaintiff in execution's cost." It is on this judgment that the case is here for review.
The evidence is substantially as follows: Henry Wagnon testified that he is an agent of Franklin Life Insurance Company and employs in his office in Atlanta, Georgia, six full-time agents, several part-time agents and a personal part-time secretary, Mrs. Grant; that he pays Mrs. Grant $100 a month; that her duties are to answer the telephone, take dictation and write any letters that go to the home office; that she has no authority to make decisions and is in no way remunerated by Franklin Life Insurance Company. He further testified that he did not recall having received a summons of garnishment allegedly served on Mrs. Grant December 11, 1957, until he received the blue judgment card from the marshal. On cross-examination the same witness testified that there is a sign on his office door reading "Franklin Life Insurance Company, Springfield, Illinois"; that there is no evidence to persons entering his office that everyone working there is not employed by the Franklin Life Insurance Company; that Mrs. Grant acts as receptionist and answers the telephone for the purpose of helping facilitate Franklin Life Insurance Company business indirectly but for the witness primarily; that she orders his office supplies and equipment and takes messages and is sometimes in the office alone, at which time she is in charge; that all premiums are paid directly to the home office with the exception of the first one which the agent collects and forwards to the home office; that in October or November a previous summons was served on Franklin Life Insurance Company against the same defendant which was answered in that the defendant was indebted to Franklin Life Insurance Company in the amount of $300. As to how the defendant became indebted to Franklin Life Insurance Company for $2,600, the witness testified it was the amount owed directly to the home office and to the witness.
Mrs. Bernice S. Grant testified that she works for Mr. Wagnon, is paid by him and her duties consist of general office work including stenographic work, typing, filing, etc. On cross-examination Mrs. Grant testified that often she is the only person in the office and performs secretarial duties and looks after the office, that sometimes but not very often Franklin Life Insurance Company was served with a summons of garnishment which she accepted, put immediately in an envelope, sealed it and put it on Mr. Wagnon's desk; that she did not recall receiving a summons of garnishment directed against Franklin Life Insurance Company and naming as defendant Theodore R. Melcher in December but that she did recall receiving either one or two in the fall.
Benny F. Harris, Deputy Marshal of the Civil Court of Fulton County, testified that on January 28th he perfected service dated December 11, 1957 to Franklin Life Insurance Company; that Mrs. Grant was in the office alone and he asked for Mr. Wagnon and she said he wasn't there. The deputy told her who he was and asked if she was in charge. She said, "Yes", and the witness said, "I have a court paper in here I have to serve you." She looked at the paper and said, "Do you want me to give it to Mr. Melcher?", and the witness said, "No, you give it to the man in charge. It's effective as of right now. You be sure to give it to Mr. Wagnon," and she said, "He'll have a fit." On cross-examination the same witness testified that he had previously served another person at Franklin Life Insurance Company.
Emory M. Bolling, a deputy marshal, testified that he went with Mr. Harris on December 11, 1957 to the office of the Franklin Insurance Company but that he stayed in the car at that time, and further that he has had occasion to serve papers including garnishments directed to Franklin Life Insurance Company and that he had served them on Mrs. Grant.
The question to be determined is whether or not the judgment dated April 10, 1958, wherein the court sustained the motion of the plaintiff in execution to strike the traverse to the writ and sustain the garnishee's motion to set aside and vacate the judgment of March 4, 1958, was a correct judgment.
Counsel for the plaintiff in execution contend that the attack made by the defendant in execution was in the nature of an affidavit of illegality, while counsel for the defendant in execution contend that a proper traverse of the return of service was made. We have studied the acts of the General Assembly creating the Municipal Court of Fulton County (now the Civil Court of Fulton County) Ga. L. 1913, p. 145 et seq., and have arrived at the conclusion that judgments such as now before us remain in the breast of the court during the term in which such judgments were rendered and may be modified or changed at any time during that term. Under this view the Judge of the Civil Court of Fulton County had a right to decide, during the same term, that there was no legal service made. See Davison-Paxon Co. v. Columbia Building &c. Assn., 47 Ga. App. 426 (1) (170 S. E. 703). The record before us shows that the judge did not abuse his discretion in this respect because he had a good, sufficient, and meritorious reason to set aside the judgment, which must be shown under the many rulings of this court and the Supreme Court. Cofer v. Maxwell, 201 Ga. 846 (41 S. E. 2d 420) does not hold contrary to this principle of law. In Burger v. Dobbs, 87 Ga. App. 88 (73 S. E. 2d 75) service was not disputed. We will not go into all of the cases cited by the plaintiff in execution, since they are not applicable to the act creating the Civil Court of Fulton County now under consideration. This court, in dealing specifically with that act in Longshore v. Collier, 37 Ga. App. 450 (2) (140 S. E. 636) said: "In a proper proceeding by petition with rule nisi or process, and service upon the necessary parties, the courts of this State may exercise the jurisdiction, which obtained at common law, to set aside judgments for irregularities not appearing on the face of the record."
The Judge of the Civil Court of Fulton County did not abuse his discretion in vacating and setting aside the previous judgment, during the same term, on the issue now under consideration.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Smith, Field, Doremus & Ringel, Alex W. Smith, Jr., James R. Harland, Jr., contra.
Kyle Yancey, Harris Bullock, for plaintiff in error.
DECIDED JULY 16, 1958 -- REHEARING DENIED JULY 30, 1958.
Saturday May 23 01:30 EDT


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