Curry v. National Bank , 53 Ga. 28 ( 1874 )

Trippe, Judge.

1. The answer of the garnishee was not filed at the return term of the summons, nor was that the term at which judgment could have been obtained against the principal debtor. It was the first term after suit was commenced against him. The answer of the garnishee was made out and filed after the adjournment of that term, but before the judgment term for the main suit. We do not think that by this the garnishee forfeited all right, and was subject to have judgment entered against him as a defaulting garnishee who does not answer at .all. It may be true that a garnishee should not make answer before the term of the court to which the summons is made returnable ; but if no judgment can then be rendered against the main debtor or the garnishee either, the.latter, by not then answering, should not be in a worse condition than the principal debtor. If the debtor does not defend or answer to the suit against him at the first term, he may still do so at the next. It is true, he may be put on terms, but never such terms as will deny him all rights and absolutely entitle the plaintiff to a judgment. Here nothing was asked of the garnishee. The right was claimed by the plaintiff to reject the answer altogether, and to take judgment for another person’s debt against the garnishee. The court did not err in refusing such a judgment: See Code, sections 3304, 3536; 15 Georgia, 188; 32 Ibid., 118; 38 Ibid., 299; 45 Ibid., 489.

2. The answer admitted that on the books of the garnishee there was a small balance due the debtor, but set up that there was a much larger indebtedness owing by that debtor to the bank. If the plaintiff rely on the point that the indebtedness of his debtors to the garnishee was not due, and that on that ground it could not be set off by the garnishee against what it owed to such debtors, he should have traversed the answer and set up that fact. It does not so appear by the answer. We take the answer to mean that such indebtedness was due. The point was made that the amount which the bank owed to the plaintiff’s debtors was an amount due them as depositors. The answer does not so state, but simply says that the sum of $67 00 is to their credit on the books of the bank. The character of that liability on the part of the bank is not shown.

3. Where a garnishee discharges himself by his answer he is entitled to a judgment against the plaintiff for his cost. This we take to be the proper construction of section 3549 of the Code. No point was made that the sum of $5 00 was aa improper amount.

Judgment affirmed.