Marsh v. Phillips, Jr. & Co.

Jackson, Chief Justice. On the trial of a certiorari to the justice court from the superior court, wherein it appeared that a jury in the justice court had overruled an affidavit of illegality, the judge of the superior court did not sustain the' certiorari, but affirmed the action of the jury. The error assigned here is that judgment of the superior court. 1. Three grounds of error are set out in the petition for certiorari. The first is, that on answer and traverse, the garnishee, who is 'the plaintiff in error, was discharged; [439] that there was no service, except by summons on him; that the attachment, when he was discharged, fell by that act; and that no subsequent proceedings could be had on the unserved attachment. We think that ordinarily an attachment can be served again by another levy or by another service of garnishment, which is only another sort of levy; but the question here is, can it be served again on the same garnishee after the judgment discharged Mm? That discharge, in an issue of indebtedness or not — effects in his hands or none — is a judgment for him on the merits, and cannot be again tried. It is an estoppel injudicio by a solemn judgment on the issue of indebtedness to the defendant in attachment, and cannot be opened again, except as all other judgments may be, that is, for fraud in procuring it, or other legal reason. But if, on a mere technical point, the garnishee was discharged, then he might be served again. As we read the petition for the certiorari (which is adopted by the answer), it appears to be a judgment after issue and trial on the truth of garnishee’s answer; but possibly it may have been a discharge simply on some technical objection to the traverse, or other irregularity of that sort. Therefore we reverse the judgment, with directions that the superior court order a fuller answer to the writ by the justice of the peace before whom the trial was had on the illegality, and ascertain precisely what was done. 2. In regard to the second point made in the petition, that service was not made on E. W. Marsh, Jr., but on his father, as appears by the return of the officer, which leaves out the junior, it is enough to say, that the officer has amended his return, and now certifies that he served E. W. Marsh, Jr. 3. The third ground can be better determined'when the amended answer is returned to the superior court. If a good traverse and an answer were at issue against the same garnishee, we do not see why the garnishee was adjudged to be in default. But full facts are necessary to adjudi- [440] cate the point, and on those facts the very able judge of the Atlanta circuit can as well determine it as any court. See code, §§3283, 3288, 3266, 3536 ; Acts of 1866, p. 24. Judgment reversed.