Carhart & Ross & Co. v. Jno. B. Ross & Co.

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right, in ruling that the garnishee shaving failed to file their answer on the day designated in the ■order for that purpose, they were remediless at Law, and could ■only be relieved in Equity ?

The Act of 1834 provides, “ that where a person shall fail 'to answer, after being duly summoned as garnishee, the Court, upon the motion of the plaintiff, or his attorney, shall pass a rule or order, requiring the garnishee to answer, at such time as the Court may direct, or show cause why judgment should not be entered against him, for the amount of the plaintiff’s demand and'costs; which rule shall be served by the Sheriff or his Deputy; and if the garnishee shall fail to answer or show •cause, at or by the time limited in the said rule or order, the ‘ Court shall enter judgment against the garnishee, for the '’amount of the plaintiff’s judgment, with costs”. (Cobb’s Digest, 83, 84.)

■ -Is the language of this Act so imperative, that non-compliance, with or without excuse, will subject the garnishee to a .judgment, under any and all circumstances ? Will not even •'the act of God, sickness, high-waters, or any other Providential cause, protect him from this amercement ? Such, we do not believe to be the meaning of the Legislature.

By the Act of 1832, judgment was rendered against the : garnishee, immediately on failure to answer. But this provi- ■ sion was esteemed too rigorous, and justly so; and it was re■.pealed by a subsequent Act.

The garnishee, under the Law, as it now stands, files his answer at the time designated, or shows some sufficient cause for not doing so. It is admitted, that upon application and cause shown, on the 21st of the month, the day specified for the answer to be filed, the time would have been enlarged. But ‘why anticipate the case, and call it up out of its order, for this purpose. Long before it was reached, and probably before . judgment was rendered against Watkins, the debtor, the answers of the garnishees were filed, accompanied with a satis- ■ factory excuse, for not doing it sooner.

The answer being in, when the case was reached, in its or"der for üial, I am very much inclined to think that the Court, in the absence of any showing, would have allowed it to be ' filed. True, the plaintiff should not be prejudiced by the delay. And if he required further time to traverse the return, it should be allowed him. But we are clear, that the reason rendered, to wit: the impossibility of getting access to the papers, which had been withdrawn from the office, was entirely sufficient to entitle the party to the indulgence -which he .claimed&emdash;if, indeed, it could be considered as an indulgence.

Judgment reversed.