Massengale v. McGinty , 73 Ga. 120 ( 1884 )

Jackson, Chief Justice.

[This was a certiorari from a justice’s court in the case of Massengale vs. Bradshaw, defendant, and McGinty, garnishee. The petition alleged, in brief, as follows: On January 31, 18S3, a justice issued a summons of garnishment to petitioner in the case named, and handed it to him on that day. Petitioner failing to file his answer, judgment was entered against him February 9, 1883. He entered an appeal to a jury on February 13,1883, and on March 9,1883, the case was tried and a verdict rendered for the plaintiff. A certiorari was applied for and bond filed June 9,1883. It was alleged that the verdict was wrong, for the following reasons:

(1.) Massengale’s bond was not in twice the amount of the debt sworn to. (The debt sworn to was $45.04 and the penalty of the bond was $90).

(2.) Because summons was not served by such an officer as the law directs.

(3.) Because the judgment of February 9, 1883, which was appealed from, was entered up in less than ten days from date of service of summons.

(4.) Because the garnishee owed the defendant nothing.

The answer of the justice showed that the summons was served by himself, as stated in the petition; and that on the trial the garnishee testified that he had nothing in his hands belonging to the defendant; had a bill of sale to the defendant’s horsefe and cows, but considered them as much his property as those in his own lot; and that he forgot to answer on February 9. It appears that no other witness was examined.

The court sustained the certiorari, adjudged the judgment and verdict mentioned to be void, and that McGinty should have judgment for costs. Plaintiff thereupon excepted.]