Lawton v. Branch

■Jackson, Justice. The question made by this record is, whether a garnishee who fails to make answer to a summons of garnishment requiring him to answer not only in respect to indebtedness when served with the summons and when he answered it, •but intermediate those dates, when he fails to answer touching the latter point of inquiry, and judgment is awarded . against him regularly for such failure, can relieve himself from his negligence on a motion to set aside the judgment at a subsequent term on the ground of accident and mistake ? He got the clerk to write his answer for him. He told •the clerk to write it in full, embracing the intermediate time. The clerk thinking it unnecessary, left that part out. The garnishee swore to and signed what the clerk wrote without ¡reading it over. Judgment was rendered against him for ■this insufficient answer by the court at the second term ■according to law ; and at the next, he made the motion to set it aside. ~We would be glad to relieve the garnishee if it could be done according to 'law, for the case seems a hard one. But •it is his own negligence. He did not even read over his answer after the clerk wrote it. According to his deposition, he knew what ought to be written and instructed the clerk what to write ; but the clerk intentionally omitted the fatal part. There was no mistake, therefore, by the clerk, and if any by the garnishee, it arose from his neglect to read "before he swore. A court of law, on a motion to set aside ■a judgment, will hardly grant relief when a court of equity would refuse it. In the case of Stroup vs. Sullivan & Black, 2 Kelly, 275, [352] relief to the garnishee was refused by the court on a bill filed in equity therefor in a case similar to this; and the-court there laid down the rule that the mistake or accident which would authorize relief must be unmixed with negligence on the part of the complainant. And such is the-Code, §§3129, 3595. The party seeking relief in the case at bar on this motion to set aside was very negligent in not reading over the answer before he signed it and deposed to-its truth. The better plan would have been to have employed counsel; then, while if there had been mistake he-might not have been relieved, he would have had his remedy over against the attorney. In 2 Kelly counsel was employed, I believe, but there was neglect, and no relief was granted. See, also, cited for defendants in error, Code, §3304; 32 Ga., 115; 60 Ib., 554; acts of 1856, p. 29, §15; Code, §§3483, 3556, 3549; 51 Ga., 326; 32 Ib., 119; 56 Ib., 510;, 45 Ib., 144-146; Code, §§4252, 4958; 58 Ga., 263; 57 Ib., 27; 38 Ib., 297, 602; Code, §§3588, 3121, 3117, 3592, 3595, 3129; 38 Ga., 138; 4 Ib., 175; 33 Ib., 12. For plaintiff in error: 40 Ga., 506; 50 Ib., 575; 55 Ib., 153; 57 Ib., 25; 58 Ib., 262; 18 Ib., 650-657; 22 Ib., 52-55; 45 Ib., 369. ! Judgment affirmed.