Haygood v. Clark Co. , 1923 Ga. App. LEXIS 489 ( 1923 )

Bell, J.

(After stating the foregoing facts.) Two questions only are presented. First, was the judgment which was taken in Muscogee superior court upon the answer of the garnishee valid, when the garnishee had died and his representatives had not been made parties to the proceedings? Secondly, if, in entering judgment against the principal and securities in the bond given to dissolve the garnishment, the principal was combined with other items, with the provision that interest should accrue, upon the aggregate sum thus obtained, was the court right in amending the judgment and execution so as to eliminate the illegal interest, when passing upon the illegality?

“ Before judgment can be rendered upon a bond dissolving a garnishment, two prior judgments must have been rendered, — first, a judgment in the main action; and second, a judgment declaring the money or property subject. National Surety Co. v. Medloch, 2 Ga. App. 669 (58 S. E. 1131); Middleton v. Johnson, 19 Ga. App. 478 (91 S. E. 785).” Simerly v. Brooks, 21 Ga. App. 169 (2) (93 S. E. 1017). Assuming that the plaintiff in error is in time (Jackson v. Hogan, 18 Ga. App. 219 (2), 89 S. E. 184), in making the attack upon the judgment rendered by the superior court of Muscogee county upon the answer of the garnishee, we are of the opinion that the judgment is not subject to the objection which is made. While it is provided in the Civil Code (1910), § 5607, that “ when any person, after being summoned as garnishee, shall die either before or after answer, the executor or administrator of such person shall be made a party by scire facias in the usual way,” it would seem that a compliance with this section is unnecessary where the garnishment has been dissolved and the answer is not traversed. “ The statute makes it the duty of the garnishee to file his answer notwithstanding the garnishment has been dissolved, and the amount of the judgment upon the bond given to dissolve the garnishment is dependent upon the judgment rendered on the garnishment proceeding. When the garnishee files his answer it becomes the duty of the court to determine whether the fund or property which the answer shows was in the hands of the garnishee at the date of the service, or which came into his hands between the date of the service and the date of his answer, would have been subject to the garnishment if it had not been dissolved; and if so, the court should enter a judgment to that effect, stating in the judgment the amount that the garnishee would have been held liable for in the evem the garnishment had not been dissolved. Upon the rendition of a judgment of this character, the court has authority to enter a judgment against the defendant and the sureties on the bond given to dissolve the garnishment.” Garden v. Crutchfield, 112 Ga. 274 (2), 276 (37 S. E. 368, 369).

“ The averments of fact in a garnishee’s answer must be taken as true unless traversed.” Darlington v. Belt, 12 Ga. App. 522 (77 S. E. 653); Harris v. Exchange Bank of Fort Valley, 17 Ga. App. 700 (1) (88 S. E. 40). The answer was not traversed. “The garnishee, upon answering, shall be discharged from all further liability, and the plaintiff’s remedy shall be upon the bond so executed as aforesaid.” Civil Code (1910), § 5283; Turner’s Chapel A. M. E. Church v. Lord Lumber Co., 121 Ga. 376, 377 (49 S. E. 272). Again, as was said in Leake v. Tyner, supra, “Section 4718 oí the Civil Code [Civil Code of 1910, § 5280] expressly gives to the defendant in a garnishment proceeding the right to dissolve the garnishment by giving a bond payable to the plaintiff, conditioned for the payment of the judgment rendered on the garnishment. In case of a dissolution the garnishee must nevertheless answer, but, on answering, is discharged from all further liability, and the remedy of the plaintiff is on the bond given by the defendant to dissolve. Civil Code [of 1895], § 4721 [Civil Code of 1910, § 5283]. It is true that' after dissolution, as before, the plaintiff may traverse the truth of the answer of the garnishee, and such traverse raises an issue to be tried, but the result of such trial does not in any event create any liability on the part of the. garnishee, nor can any judgment be rendered therein against him. If the judgment rendered on the trial of the issue finds the funds in the garnishee’s hands subject, the plaintiff may enter up judgment against the principal and sureties on the bond to dissolve, for the amount so found. Thus it will be seen that where the defendant dissolves the garnishment and thereby obligates himself to pay the judgment rendered on the garnishment, he becomes directly interested in the question raised,, whether the garnished funds are subject, while by the act of dissolution all interest in the question is, lost by the garnishee. In other words, by the act of dissolution the parties to the issue are changed.” See also Jackson v. Hogan, supra, wherein it was ruled similarly by this court, that “ the giving of such a bond changes the parties, by shifting the issue from one' between the plaintiff and the garnishee to an issue between the plaintiff and the defendant.” It would even seem that it is immaterial that the answer was not traversed. “ The plaintiff may enter up judgment upon such bond against the principal and securities, as judgment may be entered against securities upon appeal, whenever said plaintiff shall obtain the judgment of the court against the property or funds against which garnishment was issued.” Civil Code (1910), § 5280.

While a dissolution bond may be given either by the defendant (Civil Code of 1910, § 5281), or by a third person who claims the fund (§ 5282), and while § 5289 may be applicable only to a bond given by the latter, its provisions may be noted: “ The claimant of any fund or property, to whom the same may have been paid or delivered upon the dissolution of the garnishment in the manner before prescribed, shall be a party to all further proceedings upon said garnishment; and judgment shall be had instanter upon said bond for any sums or the value of any property that may be found to have been in the hands of said garnishee, liable to the operation of said summons of garnishment.” Under the decisions above cited, the rule would appear to be the same in case of a bond by the former.

We therefore conclude that, the garnishment proceedings having been dissolved, it was not necessary to the validity of the judgment upon the garnishee’s untraversed answer that the executors of the garnishee, who had died, should have been made parties to the proceedings. After answering, the garnishee was no longer a party. The estate of the garnishee could in no way have been affected by the judgment, and the executors were not necessary parties thereto. Accordingly, we think that the views of the learned trial judge upon this question were correct. Whether, when it may be necessary to make parties, upon the death of one garnished as administrator, the new party should be the legal representative of the person who was administrator, or rather his successor in the office, is a question not arising at this time, since we are deciding that upon facts disclosed no new party whatsoever was required to be made.

Neither was it error to amend the judgment and the fi. fa. in order to make them conform to the pleadings. The effect of the judge’s order in this respect was really to sustain in part the affidavit of illegality. The only defect pointed out by this ground was the fact that the original principal had been added to other items with interest accruing upon the aggregate. It was objected that this was an allowance of compound interest, and it was in response to the affidavit of illegality that the judgment and the fi. fa. were so corrected as to eliminate the alleged defect. “ A judgment may be amended by order of the court in conformity to the verdict upon which it is predicated, even after an execution issues; and where such judgment has been so amended, and execution shall have previously issued thereon, the clerk of the court in which such judgment was rendered shall have power to amend the execution at any time, so as to make it conform to the amended judgment, and such amendment shall not cause any levy thereon to fall.” Civil Code (1910), § 5697; Elliott v. Wilkes, supra; Scarborough v. Merchants & Farmers Bank, 131 Ga. 590 (62 S. E. 1040); Weaver v. Tuten, 144 Ga. 8 (1) (85 S. E. 1048).

There was no error in the amendment; and, besides, the plaintiff in error was benefited by it and would hardly be heard to complain.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.