
    Neil McCallum & Brother, plaintiffs in error, vs. Herman Brandt, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Garnishee’s Failure to File Answer — -Effect.—At the same term at which judgment was obtained against the principal 'debtor, a defaulting garnishee moved the Court, after the discharge of the jurors, to be allowed to file his answer denying any indebtedness, and for cause why the answer was not filed before, showed that the original defendant had been, before that time, in a case of involuntary *proceedings in bankruptcy, adjudged a bankrupt; that a new trial had been granted, and the proceedings in bankruptcy were still pending:
    Held, That the Court did not abuse his discretion in permitting the answer to be then filed.
    Garnishment. Bankrupt. Before Judge Gourd. City Court of Augusta. May Term, 1872.
    At the May term, 1872, of the City Court of Augusta, Neil McCallum & Brother obtained a judgment against Adolph Brandt, on an action of complaint, for $620 13, besides interest and costs. Herman Brandt was served with process of garnishment in said suit, returnable to the February term, 1872, but had failed to file an answer. After the jury was discharged for the term, plaintiffs moved for a judgment against the garnishee. The latter then offered to file his answer denying any indebtedness to the defendant, and, as an excuse for his delay, stated that, at the instance of Russell & Alger, petitioning creditors, a rule to show cause why he should not be adjudged a bankrupt was granted by the Judge of the District Court of the United States for the Southern District of Georgia, and served on Adolph Brandt on January 26th, 1872, the alleged grounds of bankruptcy being the giving of a mortgage dated July 17th, 1871, to Julius Kaufman, which was foreclosed on January 13th,' 1872, and a failure to meet his commercial paper. Cause was shown by Adolph Brandt to the contrary, but he was adjudged a bankrupt on April 1st, 1872. Subsequently, on the same day, such adjudication was set aside and a new trial ordered, which is still pending undetermined.
    These facts were not disputed. The Court refused to allow judgment against the garnishee, and ordered his answer to be filed. To which ruling plaintiffs excepted.
    Frank H. MieeeR, for plaintiffs in error.
    Joseph P. Carr, for defendant.
    
      
      Gamishee’s Failure to Answer — -Effect.—When a garnishee fails to answer within the time prescribed, the general rule is that the plaintiff is entitled to have a judgment against the garnishee; but in case where, within three 'days after the plaintiff had obtained judgment against the defendant, .the garnisheq filed an answer denying any indebtedness to the defendant, and set forth therein good and sufficient reasons for not answering in due time, which reasons showed that the garnishee was guilty of no laches but acted in good faith, and therefore was, in justice and right, entitled to an opportunity to answer, it was error to strike the answer and enter -judgment against the garnishee. Atlantic Journal v. Brunswick, etc., Co., 1111 Ga. 733, 36 S. E. Rep. 929, approving; the principal case.
      Same — Same—Principal Case Distinguished. — The case of Bearden v. Metropolitan St. R. Co., 82 Ga. 605, 9 S. E. Rep. 603, is distinguished from the principal case. There, where a summons of garnishment was returnable to the June term of the city court, and no answer was filed at that term, and at the December term the case was reached in its order, and still no answer was filed, and no reason was assigned for such failure; the court held that it was error to allow counsel for the garnishee “further time to look into the matter,” and to refuse to strike the answer of the garnishee subsequently filed, and to enter up judgment against it as in cases of default.
      Same — Same.—The case of Atlanta, etc., Co. v. Nelms, 116 Ga. 924, 43 S. E. Rep. 380, is distinguished from the principal case, the court saying in that case, that while relief against mistakes of law, as well as mistakes of fact, may under certain circumstances be granted by a court of equity, in no instance has this court held that such relief can be granted to a party who, like the plaintiff in.error, offers no better excuse for his failure to take proper steps to protect himself than that he was ignorant as to the law and supposed he would acquire an advantageous position by voluntarily doing precisely what he ought not to have done in attempting to gain and preserve a preference.
    
   *Trippe, Judge.

We do not think the Judge’ abused his discretion in permitting the garnishee to file his answer at the time he did. The main defendant had been adjudged a bankrupt. It is true the judgment had been set aside, but proceedings were still pending in bankruptcy, and this was the reason the garnishee gave why he had not filed his answer before the jury was discharged, not believing that judgment could be taken against the principal debtor. The Court below seemed to think the fact that the pendency of the involuntary proceedings in bankruptcy suspended the jurisdiction of the State Court. There is some authority which goes to that extent, and this Court is not prepared unanimously to hold to the contrary. For myself, I do not think that such proceedings, before an adjudication of bankruptcy, affects a suit pending in the State Court, and that the weight of authority and principle are on that side. But with the difference of opinion that exists, and a party, under the advice of counsel, fails to file his answer in time, not believing that the Court would proceed further in the main suit, shall he be adjudged in contempt, (for it is as a quasi contempt,) and be adjudged to pay the whole debt ? Though the last day of grace in such cases may seem to have passed, it is not always that the door is finally closed. In Carhart & Ross vs. Ross & Company, 15 Georgia, 186, when the day fixed in the rule taken under the law, as it then stood against a defaulting garnishee, had expired, he was still allowed to file his answer, on showing that the delay was occasioned by loss of papers, or, rather, by their being misplaced;

Judgment affirmed.  