Plant & Son v. Mutual Life Insurance , 92 Ga. 636 ( 1893 )

Simmons, Justice.

1. The facts appear in the reporter’s statement. The garnishee’s answer ought to have been made at, and not before, the return term. (Code, §3536; Act of Feb. 24, 1872.) The act of 1872, here referred to, expressly repealed the provision which allowed the answer to be made before the term. This court has held, however, that an answer prematurely filed will not on that account be treated as insufficient, unless it be excepted to; and when excepted to, it is amendable. Burrus & Williams v. Moore, 63 Ga. 409, (2). It was complained that the amendment came too late, and that no excuse was offered for not making it before. But no exception was taken to the answer until the second term after the answer was filed; and when exceptions were filed, they were met promptly by an offer to amend. The failure to except was good cause for allowing the answer to be amended at that time. The answer being sufficient until excepted to, the garnishee was not in default. The case of Bearden v. Metropolitan Street Railroad Co., 82 Ga. 605, and other cases cited by counsel for the plaintiff in error as bearing on this question, do not relate to the time of allowing an amendment, but to the time of allowing the answer to be filed. In those cases the garnishee was in default in not having filed any answer at all.

2. The answer as amended was not properly verified.. Rockwell, as agent of the garnishee, deposed that it was true “ to the best of his knowledge and belief.” This-was insufficient without a further statement pointing out what facts he knew and what facts he believed, together with the grounds of his belief. The code requires the garnishee to answer on oath (§3536), and to “ admit or deny his indebtedness, or that he has or had effects in his hands belonging to defendant; and if he is unable to do so, his inability must appear in his answer, together with all the facts plainly, fully and distinctly set forth,, so as to enable the court to give judgment thereon.” (§3548.) It is plain that this requirement is not met by an affidavit which admits or denies only to the best of the affiant’s knowledge and belief, without more. Such an affidavit, as we have before had occasion to remark,, commits the affiant to almost nothing, and is even “ weaker than an affidavit of belief, for the party does not state what he does believe.” Bryan v. Ponder, 23 Ga. 482; Stancel v. Puryear, 58 Ga. 445; Martin v. Lamb & Co., 77 Ga. 256; Sprinz v. Vannucki, 80 Ga. 774. If the affiant cannot admit or deny positively, he must say so, and must state what he does know touching the matter.

When this affidavit was objected to, counsel for the garnishee added his own affidavit, stating therein that he was “ an attorney at law ” of the garnishee, and that the answer was true. This was objected to, but the court held the verification sufficient. There is no provision of law authorizing the verification to be made by one who does so simply as an attorney at law of the party required to answer, and who does not profess to be the agent of the party otherwise than in that capacity; and we do not think such a verification is sufficient. As we have said, however, the answer is amendable; and direction is given that the garnishee be allowed to amend, if a proper amendment be tendered and duly verified within ten days after the entry of the remittitur from this court in the court below.

Judgment reversed, with direction.