Emanuel v. Smith & Richmond , 38 Ga. 602 ( 1869 )

Brown, C. J.

1. It is the duty of the garnishee to appear at the second term of the Court, and file his answer. This should be done before the case is reached in its order on the docket. If the garnishee appears when the case is called in its order, the Court may allow him time to file his answer before it is heard. But, if he fails to appear and answer, and the case is disposed of in its order on the docket, and the presiding Judge refuses to set aside the judgment rendered against the garnishee, this Court will not, (unless in extraordinary cases,) control the discretion of the Court below. See Harris vs. Breed & Co., 38 Ga. R., 297.

2. But we think this judgment should have been set aside on the ground that no final judgment had been rendered against Hay, the defendant in the action at common law. Section 3491 of the Revised Code declares that the plaintiff shall not have judgment against the garnishee, unless he has obtained judgment against the defendant. We think this means filial judgment against the defendant. And this view is strengthened by reference to the latter part of section 3228 of the Code, which says: The Court may continue the case (against the garnishee) until final judgment is rendered against the defendant in attachment. In this case judgment had been rendered against the defendant in the common law action, out of which the garnishment sprung; but an appeal had been entered, and the case was still pending in the Court below.

Under these circumstances, we are of the opinion that the judgment against the garnishee should have been vacated till final judgment against Hay.

Judgment reversed.