R Cas Holbrook v. Evansville, etc., R. Co 3. It is assigned as error that the court gave certain objectionable requests on the part of the defendant. The counsel is mistaken in his assertion that these requests were given. The judge stated that he was requested to give them, but said that they were inapplicable to the case, and were not controlling, giving the reason why, viz. that if plaintiff was in the act of alighting when the car was still, and it was started suddenly, that would constitute negligence and entitle plaintiff to recover. There are other assignments of error, which we do not consider of sufficient importance to discuss. We find no error in the admission of testimony or the instructions of the court. The case was fairly submitted, and the judgment is affirmed. The other justices concurred. HOLBROOK et al. v. EVANSVILLE & T. H. R. Co. (Supreme Court of Georgia, Nov. 6, 1901.) [39 S. E. Rep. 938.] Garnishment-Service of Summons.* Due and legal service of a summons of garnishment upon a railroad company is not shown by an entry reciting that the summons was served personally upon each of three named persons, the first designated as "Gen. Sou. Agt.," the second as "Trav. Frt. Agt.," and the third as "Commercial Agt.,” and that these persons were ''in charge of office." Such an entry is defective in failing to disclose that the individuals served were agents of the company, and in not affirmatively showing that the "office" of which they were in charge was its office. (Syllabus by the Court.) Error from superior court, Fulton county; J. H. Lumpkin, Judge. Garnishment proceedings by A. L. Holbrook & Co. against the Evansville & Terre Haute Railroad Company. Illegality overruled in justice court. On judgment sustaining a certiorari, plaintiffs bring error. Affirmed. S. D. Johnson and Jas. K. Hines, for plaintiffs in error. LUMPKIN, P. J. This case, upon its facts, is identical with that of Holbrook v. Railroad Co., 114 Ga., 39 S. E. 937, save that the return of service in the present case was in the following words: "Served the within by serving summons of garnishment issued on within affidavit and bond on Evansville & Terre Haute R. R. by serving D. H. Hillsman, Gen. Sou. Agt., S. L. Rogers, Trav. Frt. Agt., and R. L. Sams, Commercial Agt., each personally, at 3 p. m., they *As to how process should be served upon railroad companies, see 6 Rap. & Mack's Dig. 1083 et seq.; 1 Id. 503 et seq.; 9 Enc. Pl. & Pr. 1; 22 Am. & Eng. Enc. Law 119 et seq. Holbrook v. Evansville, etc., R. Co (N S) being in charge of office. This March 2, 1889. [Signed] R. B. Lynch, L. C." The judge of the superior court, following the decision rendered in Railway Co. v. Hagan, 103 Ga. 564, 29 S. E. 760, held that this entry of service could not lawfully be made the basis for entering up judgment against the defendant in error for failure to answer the summons of garnishment. In this conclusion we fully concur. As will have been observed, there is in this entry no recital that the individuals therein named were agents of this particular railroad company; or that they were in charge of its office; or, indeed, that it had any office in this state. The statement, "they being in charge of office," was entirely too general and indefinite to meet the requirements of the statute with reference to the service of summonses of garnishment on corporations. See, also, in this connection, Hargis v. Railway Co., 90 Ga. 42, 15 S. E. 631; Bank v. McCullough, 108 Ga. 249, 33 S. E. 848; Cathcart v. Railway Co., 108 Ga. 253, 33 S. E. 875. In Insurance Co. v. Coleman, 58 Ga. 256, Judge Bleckley took occasion to remark, "Insurance is business, and not elaborate and expensive trifling. A like observation is applicable to the matter of perfecting service and making a proper return thereof. Judgment affirmed. All the justices concurring. HOLBROOK et al. v. EVANSVILLE & T. H. R. Co. (Supreme Court of Georgia, Nov. 5, 1901.) [39 S. E. Rep. 937.] Garnishment-Service of Process.* A return showing that a summons of garnishment was served upon a railroad company therein designated by serving personally a named individual described as "sole agent of the Co., in charge of their office," at a specified house in a city located in the county wherein the garnishment proceeding was pending, met the requirements of section 4710 of the Civil Code, which prescribes the manner of serving garnishment processes upon corporations. Same-Return Judgment. A judgment against a garnishee, duly entered, is, as to him, conclusive of the proposition that the plaintiff had already obtained a valid judgment against the main debtor whose effects were sought to be reached by the garnishment proceeding. (Syllabus by the Court.) Error from superior court, Fulton county; J. H. Lumpkin, Judge. Garnishment proceedings by A. L. Holbrook & Co. against the Evansville & Terre Haute Railroad Company. The illegality was overruled in a justice court, and on hearing of certiorari judgment sustained the certiorari, and plaintiffs bring error. Reversed. *See generally, preceding case, and foot-note. R Cas Holbrook v. Evansville, etc., R. Co S. D. Johnson and Jas. K. Hines, for plaintiffs in error. LUMPKIN, P. J. The record discloses that A. L. Holbrook & Co. instituted against the Evansville & Terre Haute Railroad Company a garnishment proceeding with a view to requiring it to answer what it was indebted to one Sams. This proceeding was based upon an alleged justice's court judgment in favor of Holbrook & Co. against him. The papers were placed in the hands of M. F. Barnes, a constable, who made the following return of service: "Served summons of garnishment upon the within affidavit and bond on Evansville & Terre Haute R. R. Co., by serving L. R. Sams, sole agent of the Co., in charge of their office at No. 8 Kimball House, Atlanta, Fulton county, Ga., personally at 12 o'clock, April 28, 1899. The railroad company made no answer, and a judgment was rendered against it as garnishee in favor of the plaintiffs, Holbrook & Co. They were proceeding to enforce this judgment, when the railroad company filed an affidavit of illegality, the grounds of which were, in substance: (1) That the alleged judgment of Holbrook & Co. against Sams was void, because he had never been served personally with a copy of the original summons in their suit against him, and because that judgment was rendered by a court which, for reasons stated, had no jurisdiction in the premises; and (2) because there was not such a return of service of the summons of garnishment upon the railroad company as would warrant the rendition of a judgment against it. The illegality was tried in a justice's court and overruled. The railroad company sued out a certiorari, on the hearing of which the judge of the superior court held that the return of service of the garnishment was legally sufficient, but rendered a judgment sustaining the certiorari, and, in effect, directing that the case be again heard in the justice's court "on the question of whether said A. L. Holbrook & Co. have a valid judgment. against Sams." I. We agree with his honor of the court below in the conclusion reached that the return of the constable, taking it to be true, was sufficient evidence of the fact that the railroad company had been duly served with the summons of garnishment. This return met substantially the requirements of section 4710 of the Civil Code, which relates to the service of garnishment processes on corporations, and which reads as follows: "Service of a summons of garnishment upon the agent in charge of the office or business of the corporation in the county or district at the time of service shall be sufficient." See, also, in this connection, Bank v. McCullough, 108 Ga. 249, 33 S. E. 848, and cases cited. It must not be overlooked that the railroad company did not undertake to traverse the truth of the constable's return of service. Had it done so, an entirely different question would not have been raised. The affidavit of illegality merely challenged the legal sufficiency of Holbrook v. Evansville, etc., R. Co (N S) the entry, upon the assumption that it correctly stated what the constable did in the premises. 2. We are, however, of the opinion that his honor erred in sending the case back to the magistrate's court for a rehearing upon the question above indicated. Whenever a court of competent jurisdiction renders a judgment against a defendant who has been duly served, he is concluded as to every defense which was actually made or might have been made. There is no doubt that the justice's court in which the garnishment proceeding originated had a jurisdiction of that case, and, for the reasons given above, it must be assumed that the railroad company was duly served with the summons of garnishment. It therefore, in legal contemplation, had its day in court, having been afforded full opportunity to make whatever defense it had against the garnishment suit. It certainly could have set up that the plaintiffs had no valid judgment against Sams, and, not having done so, the judgment against it conclusively and finally established the proposition that Holbrook & Co. had obtained a valid judgment against Sams. It is, of course, true that, without having obtained such a judgment, the plaintiffs were not legally entitled to a judgment against the company; but the fact that the court gave judgment against it concludes it upon this very point. As matter of fact, it may be that the company was not indebted to Sams, but no one would for a moment contend it could now set up this defense by illegality. To allow this would be to permit the company to go behind the judgment rendered against it in the garnishment proceeding, which it surely cannot lawfully do. Neither can it go behind that judgment for the purpose of setting up the alleged invalidity of the plaintiffs' judgment against Sams in their suit against him. The latter of these propositions is as clear and palpable as the former. As against the railroad company, the law presumes that the court which rendered the judgment in favor of Holbrook & Co. against that company had before it proof of every fact essential to the establishment of their right to have this judgment entered. This being so, and the law being that the plaintiff shall not have judgment against the garnishee until he has obtained judgment against the defendant" (Civ. Code, § 4726), it is in this case, so far as concerns the garnishee, to be conclusively presumed that the plaintiffs did show to the court that they had obtained a good judgment against Sams. They may not, in point of fact, have done so, but the garnishee is no longer in a position to make any such defense. It very often happens that judgments established as true that which could, before their rendition, have been shown to be false; but this will not be allowed after judgment. In answer to the contention that the record of "the whole case" shows that the garnishment judgment was void, because rendered in the absence of a valid judgment in favor of Holbrook & Co. against Sams, it need only be said that, even R Cas Russell v. Pittsburgh, etc., Ry. Co granting, for the sake of the argument, that the judgment against him was open to attack, the record of the original suit of these plaintiffs against him which resulted in that judgment is no part of the record of the garnishment case. That was an entirely separate and distinct suit, wholly inde- . pendent of the action against Sams. The record of that action is, with regard to the garnishment proceeding, merely evidentiary, and nothing more. It could, if sufficient to show the existence of a good judgment against Sams, have been introduced in evidence on the trial of the garnishment case. If not sufficient to do so, it would have been worthless, even as evidence. In no view can it be considered as a part of the pleadings or record proper of the garnishment proceeding. It follows irresistibly that the garnishee cannot, by illegality, invoke an inspection of the record in the suit against Sams, to show either that the plaintiffs did. not prove, or could not have thereby proved, that they had a valid judgment against Sams. There is nothing on the face of the record of the garnishment case showing that the judgment therein was based upon insufficient evidence as to the rendition of a judgment against the original debtor, or that the judgment against the garnishee was itself for any reason invalid. Judgment reversed. All the justices concurring. RUSSELL V. PITTSBURGH, C., C. & ST. L. Ry. Co. (Supreme Court of Indiana, Oct. 25, 1901.) [61 N. E. Rep. 678.] Liability for Injury to Person Riding Gratuitously.* The fact that a traveler is being carried gratuitously or has not paid his fare will not of itself deprive him of his right of action for the result of the carrier's negligence. Validity of Contract Releasing Carrier from Liability for Negligence to Employee of Sleeping Car Company.t A railway company is under no legal duty to provide or furnish sleeping cars, and a contract specifically releasing the company from all liability for negligence towards an employee of the sleeping car company riding in a sleeping car attached to one of the railway company's trains is valid. Contract Releasing Carrier from Liability for Negligence to Employee of Sleeping Car Company Inures to Benefit of Company Transporting Car. A contract made between a sleeping car company and an employee releasing the sleeping car company and all transportation companies *See extensive note, 20 Am. & Eng. R. Cas., N. S., 121 et seq.; 2 Rap. & Mack's Dig. 312 et seq.; 5 Am. & Eng. Enc. Law (2d Ed.) 507 et seq. As to the liability of railroad companies with respect to sleeping cars, see Louisville & N. R. Co. v. Ray (Tenn.), 11 Am. & Eng. R. Cas., N. S., 174, and note, 184 et seq.; 7 Rap. & Mack's Dig. 139 et seq.; 9 Cent. Dig., col. 1659 et seq.; 5 Am. & Eng. Enc. Law (2d Ed.) 530. |