44 Ga. App. 176 | Ga. Ct. App. | 1931
We quote as follows from the bill of exceptions in this case: "In the case of Ashford & Company, a firm composed of W. H. Ashford, G. F. Ashford, and Mrs. Julia Ashford Billups, against E. C. Anderson, defendant, and O. L. Anderson as administrator of the estate of Miss Emma L. Anderson, deceased, garnishee, returnable to the January term, 1930, of the superior court of Laurens county, being a garnishment based upon a pending suit, the garnishee having answered not indebted and the answer being duly traversed, upon the trial of said traverse upon an agreed statement of facts without the intervention of a jury, the Hon. B. Earl Camp presiding, the court, after hearing argument of counsel, gave judgment for the plaintiff, sustaining the traverse, and against the garnishee, on April 25, 1931. To this judgment of the court the plaintiff in error excepted and now excepts, and assigns the same as error upon the ground that the same was contrary to law and to the evidence.”
The following summary of the agreed statement of facts contained in the bill of exceptions is deemed sufficient: The note sued on was signed by E. C. Anderson and payable to Ashford & Company, a firm composed of W. H. Ashford, G. F. Ashford, and Mrs. Julia Ashford Billups. It was dated March 15, 1923, was due November 1, 1923, bore interest from date at the rate of eight per cent, per annum, and contained a complete homestead waiver. Suit was filed on said note on December 16, 1929, and on July 28, 1930, a judgment was rendered in favor of Ashford & Company against E. C. Anderson for $655 principal, interest, attorney’s fees, and costs. On December 17, 1929, a summons of garnishment based upon said suit was served upon O. L. Anderson as adminis
The first question for determination is raised by a motion to dismiss the bill of exceptions for the reason that the assignment of error is not sufficiently specific, and “does not point out the reason why the judgment is contrary to law.”
The Civil Code (1910), § 6139, provides that a bill of exceptions'“shall specify plainly the decision complained of, and the alleged error.” Section 6203 reads: “The Supreme Court shall
The opinion in the case of Patterson v. Beck, 133 Ga. 701 (66 S. E. 911), contains a most illuminating and convincing discussion of the sufficiency of assignments of error. Eeferring to the code-sections quoted above, Justice Lumpkin, speaking for the court, said: “The last-mentioned act was evidently intended to liberalize somewhat the former ones, or at least the construction which had sometimes been given to them. Eules of this character are made for a substantial purpose, not as mere technical pitfalls to catch the unwary.” In the same opinion this rule is laid down: “Where there are several things involved in a judgment, the thing complained of ought to be made to appear. . . When this [rule] is borne in mind, and the language used in the various decisions is considered in the light of the facts of the respective cases before the court, if not all apparent conflict, at least most of it, practically disappears.” This statement is in thorough accord with our experience. It appears that in the Patterson case the question involved was whether or not “the garnishing creditor obtained any right to the funds . . caught under the garnishment,” that this was the only question involved, and that the court determined that
Of course, if the case had been submitted to the court upon both questions of law and fact, as was done in many of the cases cited by the defendant in error, the assignment of error would be fatally defective in not specifying whether the judge erred as to matter of law, or as to matter of fact, or as to both. Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 (28 S. E. 382); Kirkland v. A. & B. Ry. Co., 126 Ga. 246 (55 S. E. 23); Kennedy v. Rumble, 4 Ga. App. 415 (61 S. E. 839). However, when the matter is reduced to its last analysis, the only question for the court to decide in the case at bar was whether the garnishment served more than four months before the voluntary petition in bankruptcy was filed, or the transfer of the defendant’s homestead rights within said four-months period, took the $400 that was in the hands of the garnishee at the time he was served with the summons of garnishment. Therefore, satisfied as we are that the judgment involves but a single question,
We come now to decide the only question presented by the record in this case. Our conclusion, after a careful study of the authorities bearing upon that question, is that the trial judge properly sustained the traverse and awarded the fund to the plaintiff! in execution. Our authority for this holding is found in the case of Light v. Hunt, 17 Ga. App. 491 (2) (87 S. E. 763), and the cases there cited. It was there held: “The service of a summons of garnishment more than four months before a proceeding in bankruptcy is filed creates a lien upon any property, money or effects of the debtor which may be caught in the hands of a garnishee. Civil Code, § 5273; Citizens National Bank v. Dasher, 16 Ga. App. 33 (84 S. E. 482); In re Maher, 169 Fed. 997 (22 Am. B. R. 290); Hobbs v. Thompson, 160 Ala. 360 (49 So. 787, 18 Ann. Cas. 382, note). See also National Surety Co. v. Medlock, 2 Ga. App. 665, 973 (58 S. E. 1131).” Counsel for the plaintiff in error differentiate the Light case, and similar cases, from the case at bar in certain particulars. However, we see no such difference as prevents the ruling in those cases from applying in the case we are considering.
Counsel for the plaintiff in error requests that the Light case and the Georgia cases cited therein be reviewed and overruled “in so far as they conflict with the case at bar.” In this connection counsel cite Herndon v. Braddy, 39 Ga. App. 165 (146 S. E. 495), and insist that it “impliedly overrules all the decisions set out above.” That decision merely reaffirms the rule announced in Garrard v. Moffett, 51 Ga. 93, that “where money is brought into court under an execution issued upon a judgment against a garnishee, the oldest judgment against the defendant takes the fund,” and overrules the case of General Motors v. Bank of Valdosta, 31 Ga. App. 475 (120 S. E. 794). Certainly the Herndon case is no authority for overruling the Medlock case, cited as authority in the Light case, for the reason that the nature of “liens” was discussed at length in the Medlock case, and it was held that whether the service of a summons of garnishment created a technical lien or not, the garnishing creditor took the funds; and for the further reason that the doctrine announced in the
Judgment affirmed.