Farmers Co-operative Manufacturing Co. v. Middle Georgia Manufacturing & Improvement Co.

October 25,1890, suit was brought against the Farmers -Co-operative Mfg. Co. for $3,637.94, and garnishment issued and was served, the garnishee having at the time $3,815.82 in money and a larger amount in notes belonging to said company and subject to the garnishment. 'To get possession of the same, the company, with five 674 individuals as securities, entered into a bond in the sum of $7,375, dated October 30, 1890, payable to plaintiff, reciting the pending action and the issuance and service of the garnishment, and conditioned that if the company should pay to plaintiff “the amount which may be recovered in said action, and cost thereon, then this bond to be void.” This bond was left with the clerk of the court, who having accepted and approved it, notified the garnishee of the fact; whereupon the garnishee surrendered to the company the money and notes mentioned, by reason and on the faith of the bond, which was given to dissolve the garnishment. At the September term, 1893, plaintiff:' obtained judgment against the company for $3,215.72 principal, besides interest and costs, payment of which having been refused by the principal and sureties in the bond, plaintiff brought this suit on the same, alleging the foregoing facts, with the further fact that the defendant company had been put into the hands of a receiver by order of the court where the suit was brought, and that the receiver also failed and refused to pay-the judgment. Defendants’ demurrer to the petition was overruled, the grounds being: No cause of action. No allegation that the garnishee ever answered, admitting property or funds in his hands subject to the garnishment, which the court decided wei’e subject thereto had it not been dissolved; nor any allegation of judgment of the court against the property against which the garnishment issued. Failure to set out any affidavit or bond to authorize the issuance of garnishment. No judgment can be obtained against the company which would bind the assets in the receiver’s hands; and no permission of the court to sue the receiver appears. Dismuke & Mills and J. S. Boynton, for plaintiff in error. Hammond & Cleveland and R. T. Daniel, contra.