Schuer, Wise & Co. v. Keaton

Russell, C. J.

1. A third person who files a claim to money or property held by a garnishee as the property of the defendant in a garnishment proceeding has such a substantial interest in the subject-matter of the suit and in establishing that the money or other property so held is his property and does not belong to the defendant, that he is entitled, in the protection of his right, to assert the invalidity of the garnishment, and to insist upon any defect, at any stage of the proceedings.

2. The giving of a bond to dissolve the garnishment does not estop the claimant from questioning the sufficiency of the proceedings in the garnishment; nor does the fact that the claimant has traversed the answer of the garnishee preclude the claimant from insisting that the plaintiff in garnishment did not give a proper bond.

Decided May 31, 1916.

Garnishment; from city court of Blakely — Judge Sheffield. May 19, 1915.

Rambo & Wright, for plaintiffs in error. Walter G. Parh, contra.

3. Since the claimant, by claiming the funds seized by garnishment, asserted that they had been illegally impounded as the property of the garnishee when the claimant himself was in fact the true owner thereof, he could, by dismissing the bond given to obtain the garnishment, release for his own benefit funds impounded by the garnishment which he claimed to be his property and not the property of the defendant in garnishment.

4. A statutory bond, given to indemnify against joint loss persons named therein as the defendants jointly, can not be the basis of a recovery against only one of the persons named. Judgment affirmed.