Opinion
40351.
DECIDED NOVEMBER 5, 1963. REHEARING DENIED NOVEMBER 21, 1963.
Garnishment. Fulton Civil Court. Before Judge Camp.
Endicott Endicott, Lucian J. Endicott, Mary C. Endicott, for plaintiff in error.
Sherman C. Fraser, Jr., Marvin P. Nodvin, contra.
1. A traverse of the plaintiff to the latter two of three answers of a garnishee came on for hearing, the question at issue being whether the defendant in the main suit and the employee of the garnishee were one and the same person, and the garnishee made an oral motion "to dismiss on the ground that garnishee was entitled to be discharged because his answer [the first one] filed on October 5, 1962, was not traversed and therefore must be accepted by the court as true. This first answer alleged that the Mable Campbell who worked for garnishee was not the Mable Campbell against whom said judgment was taken and her wages were not subject to garnishment." The court overruled this motion and entered a written order sustaining another oral motion attacking the traverse because of a late filing, and "dismissing" the garnishee as to the first and second summons of garnishment, but not as to the third. This written order is expressly excepted to in the bill of exceptions and error assigned thereon that the written order "is contrary to law because, based on the facts as set forth in garnishee's answer filed October 5, 1962, which answer was untraversed, garnishee was entitled to be discharged"; this exception (a) is not an exception to, or an assignment of error upon, the overruling of the oral motion not mentioned in the written order; nor, (b) does such assignment of error constitute a reason for reversal of the written order to which exception was made. Whether the order overruling the oral motion not mentioned in the written order was ever formally entered does not appear, but, whether entered or not, the exception and assignment of error is not an exception or assignment of error to this order, and shows no grounds for reversal of the written order excepted to, nor does said written order support a plea of res judicata on the theory that such order was one sustaining the oral motion not mentioned in the order, and which oral motion the bill of exceptions shows was overruled rather than sustained.
2. Assuming, but not deciding, that a single traverse may not be maintained as to two answers of the same garnishee to two separate summons issued at different times upon the same affidavit and bond ( Code § 46-303), yet, where it appears that such a traverse to one of the answers was essentially disposed of by an order of the judge "dismissing" the garnishee as to the "summons" answered, which action was taken prior to the hearing on the same traverse as to the other answer, at which later hearing the garnishee for the first time made a motion to dismiss the traverse on the ground that it was an attempt to traverse two answers with a single traverse, such a traverse was not subject to dismissal on this ground, for the reason that under such circumstances there was only one traverse to one answer at the time the motion was made.
3. Whether Code § 8-505 before the amendment of 1962 (Ga. L. 1962, pp. 717, 720) or after the amendment of 1962 applies to the instant case, the traverse to the answer of the garnishee was not filed too late. Prior to the amendment of 1962, the traverse could be filed at any time before the garnishee was discharged. Banks v. Hunt, 70 Ga. 741 (1). Since the Act of 1962, amending Code § 8-505 "so as to prescribe the time of filing and trial" of traverse to the answer of a garnishee, the traverse must be filed within 15 days after filing of such answer and service of copy thereon upon plaintiff or his attorney in the manner therein prescribed. It does not appear from the record in this case that such service has been made; therefore, the traverse to the answer, having been filed before the discharge of the garnishee, and prior to service of a copy of the answer upon the plaintiff, was, in either event, filed within the time required by law.
4. In his brief plaintiff in error, the garnishee in the court below, for the first time attacks the judgment in the main case, his ground of attack being that it was a judgment rendered before the judge without a jury in a tort action which was in default and, therefore, void, citing Code Ann. § 110-401, and Code §§ 110-701 and 110-711. Assuming, without deciding, that Code Ann. § 110-401 is applicable to the Civil Court of Fulton County, and that a judgment rendered by the judge without the intervention of a jury in a tort action in default is absolutely void when done without a waiver of a jury trial on the part of a defendant, Greene v. Greene, 76 Ga. App. 225 ( 45 S.E.2d 713), and that such judgment could be attacked for the first time by brief in this court, Wadley So. R. Co. v. Wright, 31 Ga. App. 289 ( 120 S.E. 551), it does not appear in the instant case, either from the evidence, the record or the face of the judgment attacked, that the judgment rendered by the judge without the intervention of a jury, was done without the consent of the defendant. It follows, therefore, that the judgment not being void on its face or in view of the evidence and the record, this court cannot consider an attack made upon such judgment for the first time in the brief of the plaintiff in error. Morrison v. Brown, 21 Ga. App. 217 (1, 2) ( 94 S.E. 85); Ewart Bros. Inc. v. Philips Sons, 44 Ga. App. 675 (4) ( 162 S.E. 634).
5. The evidence upon the trial of the traverse to the answer of the garnishee amply authorized, if it did not demand, a verdict in favor of the traverse and against the garnishee.
6. The question of whether more than one summons can be issued upon an affidavit and bond after trial and judgment in the main case was not raised in the court below or in this court, and no decision is rendered thereon. See, in this connection, Code Ann. § 46-105; Paton Co. v. Chambliss Co., 114 Ga. 626 (1) ( 40 S.E. 760).
7. It follows that the trial court did not err in overruling the motion for new trial on the general grounds only and did not err in any of the other rulings complained of and properly presented to this court for decision.
Judgment affirmed. Bell, P. J., and Hall, J., concur.
DECIDED NOVEMBER 5, 1963 — REHEARING DENIED NOVEMBER 21, 1963.
The plaintiff, J. C. Barge, obtained a judgment by default in the Civil Court of Fulton County against Mable Campbell, being suit numbered 441,868. Subsequently, on the 18th day of September, 1962, plaintiff filed an affidavit and bond upon which summons of garnishment was issued and served upon the garnishee on September 20, 1962. To this summons, the garnishee filed an answer on October 5, 1962, upon a printed form answering that he was indebted to the "defendant" in a named amount, which, less certain deductions and the exemption left $19.58 subject to the process of garnishment which he paid into court "under protest" because "The Mable Campbell named in judgment suit # 441868, J. C. Barge vs Joe Campbell Mable Campbell, which was entered by this court on Feb. 14, 1956 is not the Mabel Campbell who works for me and to whom I owe this money. It is my understanding that the Mabel Campbell that said judgment is against did own an automobile driven by one Joe Campbell as alleged in said suit but the Mabel Campbell who works for me did not own an automobile on June 22, 1953, does not own an automobile now, and has never owned an automobile. Therefore, this money paid into court in answer to this summons of garnishment belongs to the Mabel Campbell who works for me and not to the Mabel Campbell cited in said judgment and same is not subject to garnishment based on said judgment." On October 15, 1962, garnishee was served with the second summons of garnishment, and on November 16, 1962, filed his answer in which he denied owing the defendant any amount and alleged further, "The Mable Campbell who works for me is not the Mabel Campbell cited in judgment No. 441,868 as stated in my answer filed October 5, 1962, to a previous summons of garnishment issued herein. Any wages I owe the Mable Campbell who works for me are not subject to this garnishment." On November 20, 1962, garnishee was served with a third summons of garnishment to which he filed an answer on December 28, 1962, denying he was indebted to the defendant and further answered, "The Mable Campbell who works for me is not the Mabel Campbell cited in judgment No. 441,868 as stated in my answers filed October 5, 1962, and November 16, 1962, to previous summons of garnishment issued herein. Any wages I owe the Mable Campbell who works for me are not subject to this garnishment." It does not appear from the record whether or not these answers were served upon the plaintiff or the plaintiff's attorney; nor does it appear whether or not the summons of garnishment contains the name and address of the plaintiff or his attorney ( Code Ann. § 46-309). On February 12, 1963, plaintiff filed the following traverse dated February 1, 1963: "Comes now the plaintiff in the above stated case, and traverses the answers filed by said garnishee of record on the 16th day of November, 1962, and December 28, 1962, and says: That each and every statement of said garnishee is untrue." On the 30th day of April, 1963, this traverse came on to be heard and the bill of exceptions recites that the garnishee "made an oral motion to dismiss on the ground that garnishee was entitled to be discharged because his answer filed on October 5, 1962, was not traversed and, therefore, must be accepted by the court as true, that is, that the Mabel Campbell who worked for garnishee was not the Mable Campbell against whom said judgment was taken and her wages were not subject to garnishment." The bill of exceptions further recites that "on said date, April 30, 1963, the court overruled garnishee's said oral motion to dismiss and entered the following order: `It is ordered and adjudged that (1) Garnishee's motion as to answers filed on October 5, 1962, and November 16, 1962, be and the same is hereby granted, and garnishee is dismissed as to the first two summons; and (2) The motion as to the answer, filed December 28, 1962, be and the same is denied, and by consent of counsel the traverse to this summons is hereby set for hearing on May 6, 1963." Just prior to the portion quoted, however, the order contained the following recitation: "The within traverse of plaintiff to garnishee's answers came on to be heard before me on this date, without the intervention of a jury (request for jury trial having been withdrawn). Counsel for garnishee made an oral motion to dismiss the three summons of garnishment on the ground that garnishee had duly answered each summons and plaintiff did not traverse either of said answers until more than a month after the last one was filed." The trial of the traverse as provided in the order of April 30, 1963, to the answer filed December 28, 1962, came on to be heard on May, 6, 1963, and the plaintiff filed and presented to the court a motion "to dismiss said traverse to his answer on the ground that said traverse shows on its face that it is an attempt to traverse the answers of said garnishee filed in this court in response to summons of garnishment served on him October 15th and also November 20, 1962, which is contrary to law and cannot legally be done," and prayed that the traverse be dismissed and he be discharged. Plaintiff also presented to the court on said date a plea of res judicata pleading that the judgment rendered on April 30, 1963, was a full and final adjudication of the "cause of action now sued on" to which plea he attached the garnishment affidavit and bond, the answer of the garnishee filed October 5, 1962, the traverse filed February 12, 1963, and the order of the court dated April 30, 1963. There appears after this in the record an order dated May 6, 1963: "After hearing and consideration the above motion to dismiss is hereby denied." At the beginning of the brief of evidence is the following recitation: "On May 6th, 1963, when the above case was called for trial, Dr. Chas. G. Boland, Sr., Garnishee, filed his plea of res judicata and motion to dismiss. The court stated that said motions contained matter that it had ruled on in its order of April 30, 1963. Therefore, said motions were overruled and the parties were ordered to proceed with the trial on the traverse to garnishee's answer." In the bill of exceptions the plaintiff excepts to the order dated April 30, 1963, "on the ground that same was and is contrary to law because based on the facts as set forth in garnishee's answer filed October 5, 1962, which answer was untraversed garnishee was entitled to be discharged." The bill of exceptions recites that the court overruled the motion to dismiss the traverse presented to the court on May 6th and plaintiff excepts to this ruling. The bill of exceptions also recites that the court overruled the plea of res judicata. Plaintiff excepts to this ruling. After hearing evidence on the trial of the traverse, in which evidence was presented as to the amount of indebtedness owed Mabel Campbell by the garnishee covered by the summons to which the answer of December 28th was filed, and evidence was presented concerning the identity of Mable Campbell, the court found in favor of the plaintiff and against the garnishee in the amount of $47.03. Motion for new trial was filed on the general grounds May 23, 1963, and was overruled by the court by order dated July 1, 1963. This ruling of the court is excepted to.