Canton Fertilizer Co. v. Hunt , 21 Ga. App. 424 ( 1917 )

Harwell, J.

(After stating the foregoing facts.)

’’“Before a claimant becomes a party, to a garnishment suit, he must file a claim to the . property apparently belonging to the defendant, in the hands of the garnishee, or he must give a bond to dissolve the garnishment, under the provisions of the Civil Code” (1910), § 5282. Drought v. Poage, 3 Ga. App. 178 (3) (59 S. E. 728). “Where . . the garnishee in his answer admitted that he had a fund in his hands, but was unable to state whether the same belonged to the defendant, or. to a third person, who, before the filing of the answer, had,- as a claimant of the fund, given bond as required by . . the code for the dissolution of the garnishment, the court had no jurisdiction, as between the plaintiff and the claimant, to proceed to judgment upon- the claim bond thus filed, until after a traverse had been filed by one or the other, or both, of the contending parties, and an issue made up as prescribed by the code,” § 5283. Small v. Mendel, 96 Ga. 532 (23 S. E. 834). Upon the answer of the sheriff the court should not have directed a verdict in favor of the claimant. The answer of the garnishee was in the nature of an interpleader, setting out the facts. It stated that he did not know, to whom the money belonged, but that he held it subject to the order of the court. We think the answer, showed that the fund belonged to T. J. Hunt, as the check was turned over to the sheriff by him, though signed by Mrs.'Hunt; it was in the possession of T. J. Hunt when turned over to the sheriff, and possession is prima facie evidence of ownership; No bond was given to dissolve the garnishment, as required by § 5282 of the Civil Code (1910). No claim was filed by Mrs. Hunt, unless the intervention filed ,by her can be treated as such, and we think it can be so treated. See Gordon v. Wilson, 99 Ga. 354 (27 S. E. 762). No traverse of the garnishee’s answer was filed by the claimant. The answer of the garnishee is taken to be true until traversed; and-under the answer of the garnishee, until traversed by the claimant and an issue made thereon, the court could not direct a verdict in favor of the claimant. We think,, therefore, no traverse having been filed by the claimant, that the court erred in not sustaining the motion of the plaintiff in fi. fa. (now plaintiff in error) to dismiss the intervention attempted to .be-made by the claimant, and in directing a verdict in her favor. Davis v. Pringle, 108 Ga. 93 (33 S. E. 815); Gordon v. Wilson, supra; Sam Weichselbaum Co. v. Allen, 20 Ga. App. 204 (92 S. E. 1014); Booth v. Brooke, 6 Ga. App. 299 (64 S. E. 1103); Harris v. Exchange Bank, 17 Ga. App. 700 (88 S. E. 40).

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur.