3 Ga. App. 101 | Ga. Ct. App. | 1907
Below ,we give the history of this .case. Barkley was a bailiff. Clara May obtained a judgment against the Columbian Supply Company, and thereupon sued out summons of garnishment, which was served on- Barkley.' This constituted the introduction of the parties to each other. And- Clara May politely asked, “Have you anything of the company’s?” When ac
1. It is not disputed that Clara May had obtained a valid judgment for $15.21, and that the summons of garnishment was properly sued out and served. The gravamen of Barkley’s complaint is that the process >of garnishment was ineffectual to reach property which has been levied upon by him as an officer, and that the traverse was not sufficiently full or explicit, in its statement, to raise any question as to the superiority of liens, or to warrant any adjudication upon that point. As a general rule, if the decision in the justice’s court is lawful and proper, and the conclusion reached is right, we would not deem it necessary to pass upon the merits of the pleadings in that court, where no demurrer was filed to the traverse, or any other objection offered thereto in that court. But, as a matter of law, the traverse in the present case was all that it was required to be, .and the objections now raised are without merit. More than fifty years ago) in Turner v. Rousseau, 21 Ga. 240, it was held that “a traverse that merely denies the truth of the answer of the garnishee is sufficient;” and if this decision has been overruled, we arc not aware of it. In. the Turner case Judge Benning, delivering the opinion of the
2. The plaintiff in error further insists that process of garnishment was ineffectual to reach the property in question in this case, which he says he sold after he was served with summons of garnishment, and the proceeds of which he applied upon a mortgage fi. fa. Counsel for the plaintiff in error, in their brief, say that the defendant in error failed to follow the method prescribed by law for enforcing her lien. They say she should have filed with Barkley, the levying officer, an affidavit with bond and security, and, on the issue thus formed, should have tested the superiority of her judgment lien in the court where the mortgage fi. fa. was pending, and they cite the Civil Code, §2769. This section is in no way applicable to the question in the present case.. It was designed for those cases where a creditor of the mortgagor-might desire to contest the validity and fairness of the mortgage,, and not to settle the priority of conflicting liens. Such a creditor-might not have, or claim to have, even the shadow of a lien on the mortgaged property, but he might be able to convince a jury that the mortgage was the result of a fraudulent collusion between mortgagor and mortgagee, injurious to him as a creditor without a lien.
The plaintiff in the court below might have been fully satisfied of both the validity and the fairness of Maynard and Guerry’s mortgage, and unable and unwilling to contest either its validity or its fairness, but was she thereby debarred from showing, that the property in the hands of the garnishee shorxld be applied to her fi. fa. rather than to the mortgage fi. fa. in his hands? We think
It is next insisted that the plaintiff, Clara May, should have deposited her judgment lien with Barkley and intervened, as provided in the Civil Code, §4776. The plaintiff could have done this if the property had been reduced to money by a legal sale; because “money raised by legal process is not subject to levy.” Section 4776, in terms, applies only to cases “where money is in the hands of an officer.” The evidence in this case shows that at the time when the garnishment was served, there had been no sale. At the time the garnishment issued there had been no levy. The goods the plaintiff sought to subject to her fi. fa. were in the possession of one Mims. The plaintiff levied on the goods, garnished Mims, and, perhaps not knowing whether the constable, Barkley, had levied upon the goods or not, served him also with ■ summons of garnishment. We see no reason why Barkley was not subject to summons of garnishment, or how, merely because he was a bailiff, he could absolutely disregard it, except at his own risk. The case of Strickland v. Smith, 53 Ga. 79, cited by counsel, is not in point. The plaintiff in this case had a valid judgment, the lien of which had attached to the propertjq and instead of serving the officer with a mere notice to retain money, she adopted one of the legal means for bringing up the question for judicial decision. Section 3768 of the Civil Code, which is cited, applies only to cases where the mortgagor fails to set up his defense by affidavit of illegality, and has no application here.
3. The truth is, a judgment creditor, in the collection of his fi. fa., is not restricted absolutely to his right to place it in the hands of the officer and, by rule, have determined the priority of his lien upon the proceeds of the legal sale. He might in some instances lose many substantial advantages by pursuing that course.
4. The respective legal priorities of a judgment lien and of a mortgage fi. fa. may be adjudicated by the determination of the issue made upon the answer of a- garnishee and the traverse thereof. Pupke v. Meador, 72 Ga. 230. The garnishee, answering that lie had had property of the defendant in fi. fa. in his possession,
We think, therefore, that the judgment overruling the certiorari was right. We can only answer- the writ of Barkley by saying, “Pay that thou owest; go and sin no more.”
Judgment affirmed.