Carter v. First National Bank , 15 Ga. App. 55 ( 1914 )

Wade, J.

Under the provisions of section 5294 of the Civil Code (1910), if a garnishee “shall answer -truly that he owes the defendant nothing,’’ and “.shall have to.incur any expense in making his or her answer to the garnishment, . . the amount so incurred shall be taxed in the bill of costs, under the approval of the court, and he paid by the party cast in the suit, as other costs are now paid.” The provision to cover the expense in making the answer being mandatory, it was error, in a case where the answer of the garnishee denying any indebtedness was, in an issue formed upon a traverse, found to be true, to refuse to tax as costs any allowance whatever for attorney’s fees, where the evidence as to the service of the attorney was undisputed. Under the verbiage of section 5294, the discretion involved in the approval of the trial judge is addressed to fixing the amount of expense to be allowed, and does not extend to or include the right to deny such expense altogether.

Decided August 22, 1914.

Taxation of costs; from city court of Sandersville—Judge Phillips presiding. April term, 1914.

J. J. Harris, for plaintiff in error. M. L. Gross, contra.

Judgment reversed.

Roan, J., absent.