Dent v. Dent , 118 Ga. 853 ( 1903 )

Lamar, J.

While ancillary to the main action, a garnishment proceeding is a distinct suit against a separate party, and for an entirely new cause of action. In the main case the question is whether the defendant is indebted to the plaintiff. In the garnishment suit the question is whether the garnishee is indebted to the defendant. Untiljudgment against the defendant, the plaintiff has no cause of action against the garnishee. The statute, it is true, gives the plaintiff a right to summon the garnishee, but his right to further prosecute the suit is not complete until after verdict and judgment in the main case. When, therefore, a judgment is entered against the garnishee at the same instant that it is signed up against the defendant, it results that the plaintiff has prematurely recovered against the garnishee, and before his right to answer has completely expired. The fact that a separate judgment may immediately thereafter be entered against the garnishee, who has not answered, does not change the legal result; for, at least theoretically, he may be in court in person or by attorney, and may show that he had good excuse for his failure, obtain permission to answer, and thereupon deny indebtedness, or show that it was not in amount equal to the sum just recovered against the principal defendant. Atlanta Journal v. Brunswick Pub. Co. 111 Ga. 722.

Inasmuch as the Civil Code, § 4726, expressly declares that the plaintiff shall not have judgment against the garnishee until he has obtained judgment against the defendant, it follows that the judgment rendered in this case was not only premature on general principles, but in the teeth of the statute, and therefore void as against the garnishee, who was not present at the time, and took no part in the proceedings in which it was entered. Fourth Nat. Bank v. Mayer, 89 Ga. 108 (1); Housmans v. Heilbron, 23 Ga. 186; Arnold v. Gidlatt, 68 Ga. 810; Bryan v. Bean, 63 Ga. 317; Liverpool Ins. Co. v. Savannah Grocery Co., 97 Ga. 7.46; Everett v. Westmoreland, 92 Ga. 671; Holbrook v. Evansville R. Co., 114 Ga. 1; Jarrell v. Guann, 105 Ga. 144.

Judgment reversed.

All the Justices concur.