Payne v. Alterman , 42 Ga. App. 663 ( 1931 )

Jenkins, P. J.

1. By the act approved August 19, 1916 (Ga. L. 1916, pp. 199, 202, § 5), “any judgment rendered by any judge of the municipal court of Atlanta shall, during the same term, be in the breast of said court, and said judge shall have the right to vacate, modify or set aside said judgment during the same term, upon the same grounds as may be done by the judges of the superior courts of this State, and shall have the same power and authority to vacate, modify, set aside or change at any time any of its judgments as is now conferred upon or exercised by judges of the superior courts of this State.”

2. Under the provisions of the act establishing the municipal court of Atlanta, “garnishment proceedings in said court shall be conformable to the laws of the State on that subject in the superior court.” Ga. L. 1913, pp. 145, 146, § 27. Consequently, in section 46 of the act, the provision for judgment in ordinary suits in eases of default “without any call of the docket” does not apply to judgments against garnishees in default, since the statute contemplates that in the superior court judgments shall be rendered against garnishees “on motion” upon the call of the garnishment case. Owen v. Moseley, 161 Ga. 62 (129 S. E. 787).

3. In the instant case, where a summons of garnishment based on a judgment was returnable to the October term, 1929, of the municipal court of Atlanta, under the ruling in Owen v. Moseley, supra, the right of the garnishee to answer at the succeeding term could be cut off only by a motion on the part of the plaintiff for judgment against him, and where the court rendered such judgment at that term, without the garnishment case being called upon the docket, and without any motion for judgment against the garnishee, on a mere memorandum from the clerk to the effect that the summons of garnishment had not been answered, it was proper to set the judgment aside on motion of the garnishee, entered at the same term, upon his paying the accrued costs and offering to answer. This ruling is not contrary to the ruling in Brumbelow Heating &c. Co. v. Atlanta Furniture Co., 39 Ga. App. 72 (146 S. E. 639). In that ease it was held that, nothing to the contrary appearing, it would be presumed that a judgment entered against a garnishee in default was rendered when the garnishment case was reached in its order on the docket, and upon motion of the plaintiff; whereas in the instant case it appears from the stipulation entered into on the hearing of the motion to vacate, that the judgment against the garnishee was entered without any call of the docket or motion of the plaintiff; and upon a memorandum to the effect that the garnishee was in default, made by the clerk and furnished by him to the judge.

Decided February 14, 1931. Rehearing denied February 26, 1931. G. Mortimer Mason, Moms Machs, for plaintiff. G. B. Tidwell, E. E. Garter, for defendant.

4. Under the foregoing rulings, the judge of the superior court did not err in overruling the certiorari by which it was sought to review the ruling in the municipal court vacating and setting aside the judgment entered by default against the garnishee.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.