40 Ga. App. 685 | Ga. Ct. App. | 1929
Lead Opinion
1. “By the weight of authority a debt due jointly to defendant and another person not a party defendant, can not be reached by garnishment. This rule is broadly based upon the doctrine that plaintiff’s rights can not rise higher than those defendant had, and, as defendant could not alone have sued on the claim, plaintiff can not in effect do so by way of garnishment.” 28 C. J. 97, § 125; Modlin v. Smith, 13 Ga. App. 259 (2) (79 S. E. 82).
2. In the instant case W. 0. and Pearl Bryant brought a joint suit against J. B. McCrary and Mary W. McCrary upon a promissory note executed by the two defendants and made payable to the two plaintiffs. As evidenced by the note, the debt was due jointly to W. 0. Bryant and Mrs. Pearl Bryant. The defendants pleaded that prior to this suit, they had been served with a summons of
It is immaterial that the plaintiffs failed to demur to the answer. They nevertheless had the right subsequently to make the point that the answer was insufficient in law, by excepting to the final
3. The right of the plaintiffs to recover attorney’s fees was not affected by the fact that the defendants were entitled to a credit on the note of the $128 paid as interest, and that such a credit was not shown in the notice for attorney’s fees served on the defendants. The plaintiffs were entitled to recover attorney’s fees on the principal amount of the note and on all of the interest, less ■$128. See, in this connection, Smith v. Baker, 137 Ga. 298 (2) (72 S. E. 1093); Livingston v. Salter, 6 Ga. App. 377 (65 S. E. 60); McMillan v. Fourth National Bank, 18 Ga. App. 445 (4) (89 S. E. 635).
4. The foregoing rulings being apparently controlling in the case, it is unnecessary to consider the other questions argued in the briefs of counsel in the case. For the reasons heretofore stated, the judgment of the trial court in favor of the plaintiffs for only half of the amount sued for and no attorney’s fees was contrary to law
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
In the motion for a rehearing it is alleged that this court, in holding that the plaintiffs were not estopped from prosecuting their suit, for the reason that the defendants had incorrectly stated the facts in their answer as garnishees, overlooked the fact that the answer set up, “as an exhibit and a part of the answer, the copy0of the note in which' it is disclosed that the indebtedness was due jointly to W. 0. and Pearl Bryant.” It is true that the answer did set forth (as an exhibit) a copy of the note, which showed on its face that the debt was a joint one. However, the answer, notwithstanding its exhibit, solemnly admitted that the garnishees were indebted to W. 0. Bryant as an individual, when in fact they owed nothing to him as an individual entity, their debt being due jointly to W. 0. Bryant and Mrs. Pearl Bryant.
The answer, to say the least, was confused and contradictor}', and the plaintiffs were not estopped because of a judgment founded upon it.
Rehearing denied.