Peoples Bank v. Johnson

Atkinson, J.

I concur in the result. Civil Code §§ 5280 and 5281 are applicable to the case. The defendant could dissolve the garnishment under § 5280 at any time after service of the summons of garnishment. The garnishee should nevertheless make answer as provided in § 5281. After filing of the answer of the garnishee, the court should render a judgment “fixing the amount that would have been due to the defendant by the garnishee if the garnishment had not been dissolved, and adjudicating that the fund or property in the hands of the garnishee was subject to the process of garnishment.” Garden v. Crutchfield, 112 Ga. 274 (37 S. E. 368). It is not required that such a judgment should await a judgment against the defendant in the principal case, nor is its efficacy in any manner dependent upon a judgment in the principal case. The only requirement is that there should be such a judgment before the plaintiff in the principal case could, in virtue of a judgment recovered by him against the defendant in the principal *278case, enter up judgment against the defendant, and the surety on the dissolution bond, for the amount which had been adjudged to be subject to garnishment by such judgment on the answer of the garnishee. In the circumstances of the instant case the setting aside of the first judgment in the principal case did not affect the judgment on the answer of the garnishee, and did not render the second judgment in the principal case (which became final) insufficient as a basis for entering judgment for the plaintiff as in cases of appeal against the sureties on the bond dissolving the garnishment.