Fulton National Bank v. Young , 123 Ga. App. 91 ( 1970 )

Deen, Judge.

The garnishee’s answer consisted of the following printed form with the underlined entries typed in: "Comes now the Fulton National Bank of Atlanta, garnishee in the above stated case, and in answer to the summons of garnishment served in this case says:

"At the time of the service of said summons of garnishment garnishee had in its hands property, effects and money belonging to said defendant, and was indebted to said defendant as follows:

”$4,799.36

"That between the time of the service of said summons of garnishment and the time of making this answer there came into garnishee’s hand property, effects and money belonging to said defendant, and garnishee became indebted to said defendant between said times as follows:

"Nothing

"That the sum of $ nothing is subject to said garnishment and garnishee herewith pays said sum into court.

"In further answer to said summons of garnishment garnishee says: ’We are holding funds in this account as they are in dispute.’”

The only issue before this court is whether this answer is an unqualified admission that the garnishee is indebted to the judgment debtor in the amount of $4,799.36 so as to authorize a judgment against it on the pleadings and over its objection, in the absence of any traverse of the truth of facts stated.

The action between the plaintiff and the garnishee is a new suit in which the garnishee is the defendant. Myrick v. Jones-Stewart Motor Co., 39 Ga. App. 614 (1) (147 SE 917). His answer must be taken as true unless traversed. Code § 46-303; Joiner v. Dougherty-Ward-Little Co., 14 Ga. App. 360, 363 (80 SE 854); Darlington v. Belt, 12 Ga. App. 522 (77 SE 653); Harris v. Exchange Bank, 17 Ga. App. 700 (88 SE 40); Murphy v. Columbus Mills, 116 Ga. App. 198 (156 SE2d 657). A statement in an answer that the garnishee is not indebted is not a conclusion, but a factual averment. It must be construed along with the further information that the garnishee holds a fund in an account belonging to the defendant, which fund is in dispute. The answer therefore is not such an unqualified admission of liability of indebtedness to the debtor as would authorize a judgment on the pleadings for the amount of the fund.

Pleadings are to be construed most favorably to the state of facts obviously intended to be urged by the pleader. City Dodge, Inc. v. Atkins, 118 Ga. App. 676 (164 SE2d 864). While the answer is subject to traverse because it does not "plainly, fully and distinctly” set forth why the garnishee is unable to answer more coherently (Code §46-301), but nevertheless, the garnishee alleges that it is unable to state whether a fund in its hands belongs to the debtor or another, no judgment appropriating the fund can be entered until a traverse is filed and the issue tried. Small v. Mendel, Gosling & Co., 96 Ga. 532 (23 SE 834). "An averment by way of conclusion admitting an indebtedness is superseded by a subsequent statement in the answer of the facts as to the indebtedness.” 38 CJS 463, 464, Garnishment, § 223.

This is not to say that the answer of the garnishee is not defective, subject to traverse, or to a motion to make more certain, but that in the absence of any objection whatever it is not an unqualified statement of liability on which a judgment may be entered without a trial of the issue. It must be construed as a whole, and, so construed, giving the typed-in portions of the form the significance obviously intended, it is a statement that the garnishee is not indebted, although it holds a fund of $4,799.36 to the account of the debtor, because the true ownership of the fund is in dispute. It was error to enter judgment against the garnishee on the basis of the answer alone.

Judgment reversed.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Pannell, Quillian and Whitman, JJ., concur. Evans, J., dissents.