Darnall v. Wood & Brother

Bleckley, Chief Justice. The single question is, whether there is any authority of law for taxing the plaintiff in garnishment with the fee paid by the garnishee to his counsel for services rendered in resisting a traverse to the answer, the answer having been found true by the verdict of a jury? “In all cases where process of garnishment shall be served upon any person, and such person shall . . . answer truly that he owes the defendant nothing, if the garnishee shall have to incur any expense in making his or her answer to the garnishment, . . . the amount so incurred shall be taxed in the bill of costs, under the approval of the court,', and be paid by the party cast in the suit, as other costs are now paid.” Code, §3549. This is the statute under which the claim is made, and we think that the intent of it is plain, and that there is no ambiguity in the letter. The expense incurred in making the answer is provided for, but the expense of vindicating the answer against a traverse of its truth is not within the statute. In the present case, the court allowed sixty dollars for expense incurred in “making” the answer, though the claim and the proof severed the expenses into two items, ten dollars for making and fifty dollars for sustaining the answer. The ten dollar allowance was lawful and is not resisted. The fifty dollar allowance was unwarranted, and must be stricken from- the judgment. What is denominated “cost” in Curry vs. The Bank, 53 Ga. 28, must have been the expense of making the answer, as in that case there was no traverse. Nor was there any in Sulter vs. Brooks, 74 Ga. 401. Judgment reversed.