Although the Code, § 46-105, requires personal service on a garnishee, where an attachment is sued out against a non-resident and summons of garnishment issued thereon is served on the agent of the garnishee, and where the garnishee nevertheless files his answer admitting funds, and where the defendant in attachment gives bond to dissolve the garnishment, and the plaintiff in attachment files his declaration, and where the plaintiff is cast in the attachment proceeding, he can not legally defend against an action on the attachment bond on the ground that the garnishee was not personally served.
DECIDED APRIL 20, 1942. ADHERED TO ON REHEARING, JUNE 17, JULY 31, 1942. This case arose on petition filed by the defendant in error (hereinafter called plaintiff) against the plaintiffs in error (hereinafter called defendants), seeking damages occasioned by the *Page 899 procuring of a process of attachment against a non-resident served by summons of garnishment.
The petition alleged in substance that the defendant Randolph Carrington, after procuring the issuance of an attachment, in order to perfect service on the plaintiff, a non-resident, caused summons of garnishment to be served on Herbert and Elaine Gilbert. The plaintiff was damaged in a sum in excess of $1000. The petition further alleged that the plaintiff expended said large sum in procuring counsel to defend the suit, making trips from New York to Atlanta and return for the purpose of defending, and that said litigation was finally determined in favor of the plaintiff. It was further alleged that the garnishees, Herbert and Elaine Gilbert, were indebted to the plaintiff at the time of the issuance of garnishment, and so answered; that it became necessary for plaintiff to file a bond dissolving such garnishment; that the defendant Carrington filed his declaration in attachment, prosecuted the case, and was cast in the suit. Carrington, and M. D. Holloway and E. E. Porterfield, sureties, filed an answer denying liability on the attachment bond, the basis of the present suit. A verdict was rendered in favor of the plaintiff on the attachment bond for $700, a sum several hundred dollars less than the items claimed as damages. The defendants filed a motion for new trial, on the general grounds, which motion was amended by adding two additional grounds. The court overruled the motion and the defendants excepted.
The motion for new trial in effect presents only one question. It is contended that Code § 46-105 requires personal service on a garnishee; that the evidence affirmatively shows that no personal service of the summons of garnishment was perfected on the Gilberts as required by law, and therefore plaintiff can not recover on the statutory attachment bond, even though the garnishees answered, and even though the plaintiff dissolved the garnishment by giving bond and defendant Carrington filed a declaration in attachment; that such was not a sufficient seizure of the property to entitle plaintiff to recover on the attachment bond. Several cases are cited to sustain this position.Hinton-Bellah Inc. v. Thebit, 62 Ga. App. 672 (9 S.E.2d 779); Bennett v. Taylor, 36 Ga. App. 752 (138 S.E. 273);Robinson v. Bryson, 45 Ga. App. 440 (165 S.E. 158);Fordesh v. Rackley, 62 Ga. App. 383, 386 *Page 900 (8 S.E.2d, 451). We do not think these cases are applicable to the case at bar. In the cases cited it appears that the garnishees were contesting service; not so in the case at bar. It would seem to us that this question has been adjudicated adversely to the contentions of the defendants in decisions of this court containing facts similar to the case now under consideration. InCranford v. Dunson Co., 1 Ga. App. 319 (2) (57 S.E. 1057), we find: "A written acknowledgment of service of a summons of garnishment by the garnishee is sufficient. But even if such acknowledgment of service is not sufficient, exception to it on this ground would not be well taken by the claimant after the garnishee had appeared and answered the summons, and the claimant had given a bond to dissolve the garnishment." See Studdard v.Barge-Thompson Co., 44 Ga. App. 349 (161 S.E. 638);Collins v. Myers, 30 Ga. App. 151 (117 S.E. 265); Cohen v. Nichols, 54 Ga. App. 394 (188 S.E. 48); Dooly v.Miles, 101 Ga. 797 (29 S.E. 118); Fourth National Bank v.Mayer, 96 Ga. 728 (24 S.E. 453).
The court did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
ON REHEARING.