Snooks v. Factory Square, Inc. , 129 Ga. App. 772 ( 1973 )

Hall, Presiding Judge.

Plaintiffs in a garnishment action appeal from the order overruling their exceptions and objections to the answer of the garnishee.

The sole issue is whether a particular writing was an "answer” capable of later amendment. In response to the summons of garnishment served on August 18,1972, the garnishee company sent to the clerk of the court a letter on garnishee’s corporate letterhead, which read:

"Re: Garnishment No. 72-1095

L. Schwartz [the employee whose wages were subject of the garnishment]

Subject is no longer employed by this company. Termination and last wages drawn were as of 8/15/72.”

It was signed by the plant manager and also had the signature of a notary, although it contained no words of oath. It indicated that a carbon copy had been sent to plaintiffs’ attorney, who received it and directed exceptions and objections to its insufficiency. The paper was stamped as filed by the clerk on September 21, 1972, which was within the 30 to 45 day period required for answering under Code Ann. § 46-106. Moreover, plaintiffs, in an admission contained in appellant’s brief submitted on this appeal, state, and we are entitled to take as truth, that garnishee "attached a photo copy of the summons to the letter.”

On October 27, 1972 the garnishee filed an "amendment” to the answer which fully complies with the provisions of Code § 46-301. Plaintiffs contend that there never existed a legal answer in this case which could be amended; and that the sufficient answer, erroneously allowed as an amendment, was not timely filed as they had previously moved for judgment against the garnishee. They rely upon Staley v. S. M. Whitney Co., 87 Ga. App. 888 (75 SE2d 279), in which a letter to the clerk in response to a summons was not considered to be an answer.

We believe the Staley case is distinguishable in important ways. We must remember that Staley was decided many years prior to the CPA when pleadings were construed against the pleader and the emphasis was on form rather than substance. The CPA "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law, but, in any event, the provisions of this Title governing the sufficiency of pleadings; defenses; amendments . . . shall apply to all proceedings.” Code Ann. § 81A-181. "Subject to the requirements of the [CPA] for pleading defenses, the same liberal rules applicable to pleading plaintiffs’ claims for relief will apply to defendants’ pleadings.” Davis v. Metzger, 119 Ga. App. 750 (168 SE2d 866). The keystone of the CPA is that "All pleadings shall be so construed as to do substantial justice.” Code Ann. § 81A-108 (f). This is a neutral principle of law applicable to plaintiffs and defendants alike.

In light of the CPA, let us consider the information contained in garnishee’s letter which was filed and served as outlined above. Enclosure of the summons left no doubt of the case in which the letter was filed, or the character in which it was filed, that is, as the response of garnishee. Filing was timely. Plaintiffs were put on notice that garnishee’s position was that as of a date prior to the service of the summons defendant had been paid his "last wages” and had left garnishee’s employ. The implication was plain that garnishee denied indebtedness to defendant. The notarized signature of the plant manager was affixed.

We do not laud this letter, which fails to comply with the pleading required by § 46-301 governing the informational contents of an answer. It was not properly verified, and it failed to provide information to which plaintiff in garnishment was entitled. However, these defects were amendable, Simplex Machine Co. v. Greenberg & Bond Co., 22 Ga. App. 68 (95 SE 530), and later were cured by amendment. Of critical importance is the fact that plaintiffs were notified of the response of garnishee; they were positioned to object to and to traverse this answer; they did so; they received the benefit of complete information contained in the amendment, thereby receiving all information to which they were entitled by statute; they had then and have now the further opportunity on their traverse to insist that garnishee prove the truth of the amended answer. Plaintiffs have been vexed by the necessity for filing a pleading objecting to the initial "answer” in order to compel a better one, but we do not see that they have been significantly prejudiced in this litigation by garnishee’s errors of form.

Returning to the Staley case pressed by plaintiffs-appellants, on the pleading point involved here the only relevance that case has today is the information, of historical importance only, that prior to the enactment of the CPA the letter we now have before us would not have satisfied the pleading requirements of Code § 46-301. Our holding today does not in any way challenge that point. Indeed, we do not rule that garnishee’s letter satisfied § 46-301; we hold only that, when properly filed and served on plaintiffs’ counsel, it was not such a nullity as to be incapable of later amendment. Moreover, we observe that the Staley decision does not hold that garnishee’s letter there was such a nullity as to be incapable of amendment had it been filed. The court was not required to reach that point because the letter was neither filed nor requested to be filed as an answer (and therefore entirely failed in the primary function of a pleading, which is to have its contents spread upon the record and to give notice thereof to all parties).

A further significant difference between the instant case and the Staley case is that here the letter was on the garnishee’s letterhead with the caption "Re: Garnishment No. 72-1095, L. Schwartz” and was attached to the original summons of garnishment with the result that the deputy clerk of the trial court made this entry over her official signature: "Answer of garnishee filed in office this 21st day of September, 1972.” Although the letter does not specifically show an oath to have been administered still it was notarized and filed in response to the garnishment summons which read "To answer in writing on oath.”

As to the absence of verification this court has held that where an answer to a summons of garnishment is unverified the omitted oath might be added by amendment. Simmons v. J. A. Jones Const. Co., 72 Ga. App. 517 (4) (34 SE2d 300); Banning Cotton Mills v. George Muse Clothing Co., 42 Ga. App. 689 (157 SE 338). Cf. Neal v. Davis Foundry &c. Works, 131 Ga. 701 (63 SE 221).

Argued April 5, 1973 Decided September 6, 1973 Rehearing denied October 3, 1973 William F. Braziel, for appellants. Friedman, Haslam & Weiner, Ronald E. Ginsberg, for appellee.

If we treat the letter as containing no oath we then find this case to be similar to Aetna Finance Co. v. Lee County Mfg., 116 Ga. App. 200 (156 SE2d 374). There the letter was not under oath and a default judgment was entered against the garnishee because the court was unaware of the letter. Ten days after the default judgment had been entered the garnishee filed an answer under oath and twenty-five days after the default judgment filed a motion to set aside that judgment. This court held that the judgment was to be set aside on the same situation as appears in our case in that "The record shows that a letter asserting that it was an answer to a summons of garnishment was filed within the time required. . . ” See also Aycock v. Royal Ins. Co. Ltd., 46 Ga. App. 299 (167 SE 551).

The court did not err in considering the second pleading as an amendment or in basing its overruling of the exceptions and objections upon its sufficiency.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Stolz, JJ, concur. Pannell, J., concurs specially. Evans, J., dissents.