Moore v. Mims
Moore v. Mims
Opinion of the Court
An attachment affidavit, in addition to the grounds of the attachment, averred that “ it will be necessary to execute this attachment by service of garnishment upon S. Mims, administrator of the estate
1. The garnishment having issued upon an attachment, even if the affidavit was not a sufficient compliance with sections 5094 and 5304 of the Civil Code (1910), the omission from the affidavit of the averment that the plaintiff apprehended loss unless process of garnishment should issue (Civil Code, § 5268) was amendable and was cured by the judgment.
2. The exceptional requirement of section 5304, in regard to the garnishment of administrators, that the creditor swear, “ in addition to the oath required in ordinary cases, that his debtor resides without the State or is insolvent,” having been complied with by the averment ,of the defendants’ insolvency, the fact that the garnishee is an administrator becomes immaterial. Consequently, the rulings of National Lumber Co. v. Turner, 2 Ga. App. 750 (4) (59 S. E. 15), Stovall v. Joiner, 10 Ga. App. 204 (73 S. E. 22), Gammage v. Perry, 29 Ga. App. 427 (10) (11), (12) (116 S. E. 126), Brown v. Wiley, 107 Ga. 87 (1) (32 S. E. 905), and Harris v. Kittle, 119 Ga. 29 (3) (45 S. E. 729), relating to the conditions upon which garnishments against administrators may issue, have no peculiar applicability to the question here involved; but the case falls under the ordinary rules which would be applicable if the garnishee were not an administrator. So viewing it, whatever defect, if any, existed in the affidavit, was cured by the judgment, and was not thereafter a good reason for setting the judgment aside. See Civil Code (1910), §§ 5706, 5691, 5957, 5959, 5960; Ghapman v. Taliaferro, 1 Ga. App. 235 (2) (58 S. E. 128); Southern Ry. Co. v. Morrison, S Ga. App. 647 (1) (70 S. E. 91); Brooks v. Hardwick, 27 Ga. App. 762 (1 a) (110 S. E. 41); McDonald v. Kimball Co., 144 Ga. 106 (2) (86 S. E. 234); Wingate v. Gornto, 147 Ga. 192 (1) (93 S. E. 206); Sloan v. Smith, 29 Ga. App. 591 (2) (116 S. E. 200), and cases therein cited. Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.