89 GA 772 - Bell & Son v. Burke

¶1 *772Judgment affirmed.

On March 27, 1891, the case came on again to be heard in the city court, and the above stated facts ap- . peared. It also appeared that on February 10, 1891; after the remanding of the case, counsel for Bell & Son caused a second original to issue in their ease against McDaniel et al., for D. F. Gunn, of Houston county, and that without any order to perfect service, said second original was served on Gunn on February 16, 1891, by the deputy-sheriff of Houston county. It was also in testimony that on January 20, 1891, the counsel for Bell & Son sent through the mail a registered letter to. Gunn, containing a notification of the lien, claimed by Bell & Son, and a request not to pay or allow to be paid to McDaniel any sum in excess of $159.80. The counsel testified that in due time he received a registry receipt for this letter through the post-office; and he offered in evidence a letter purporting to have come from Gunn, acknowledging receipt of the notice sent to him. This letter was rejected on the objection of Burke, because there was no proof that it was written or signed by Gunn.

Burke demurred to the declaration of Bell & Son, and moved to dismiss it because it did not appear that Gunn had ever been properly served, and because there was no allegation that Gunn had been served with the notice required by law. Bell & Son objected to Burke being allowed to demur or otherwise object to the establishment of their lien against Gunn, or to the evidence offered in their behalf; but this objection was overruled. Whereupon they amended their declaration by alleging that they had served Gunn with written notice as. required by law, before he had settled with or paid McDaniel. This 'amendment was allowed, and the demurrer and motion to dismiss were overruled. Bell & Son objected to the admission in evidence of the garnishment papers or the answer thereto, on the ground that the garnishment, having been issued on an affidavit and bond attested and approved by the attorney for Burke, was void. This objection was overruled. The-court rendered judgment in favor of Bell & Son against McDaniel, but found against the lien claimed; and thereupon awarded the fund in court to Burke’s judgment as being the older of two liens of equal dignity.

The errors assigned in the petition for certiorari are: “ in permitting Gunn and Bone & Chappell, who had been discharged ” by the consent order before set out, “ and who had neither appealed nor certioraried from the first judgment,” to demur to the declaration of Bell & Son, and to object to their evidence ; in holding that a necessary allegation in the declaration was that notice had been given to the owner; in admitting in evidence Burke’s garnishment and the answer thereto, and the traverse of the answer; in deciding that the lien of Bell & Son should not be set up and established; and in awarding the fund to Burke instead of to Bell & Son.

J ones & Dasher, by brief, for plaintiffs in error.M. B. Freeman, by brief, contra.