155 Ga. 550 | Ga. | 1923
The only question involved in this case is whether a receiver appointed by a court is subject to garnishment without the consent of the court by which he was appointed. Our learned brethern of the Court of Appeals held that Bugg, as receiver of the Atlanta, Birmingham & Atlantic Railway Company, appointed by the United States court, could be garnished, and that therefore the funds admitted to be in his hands were subject to garnishment. In the second headnote of the decision of the Court of Appeals it is held: “ An indebtedness due by a receiver, appointed by a United States district court for a railroad corporation, to an employee, for services rendered to the receiver in carrying on the business of the railroad, is a ’transaction of
We are of the opinion that the Court of Appeals erred in holding that the garnishment could proceed for the reasons stated, or for any other reasons which rest within our knowledge. This court is of the opinion that no receiver can be made subject to the process of garnishment, except by leave of the court which appointed him; and it is admitted in the case at bar that no such leave had been obtained from the United States court by which Bugg was appointed as receiver. This conclusion may, we think, be properly reached by mere reference to § 5485 of our Civil Code, which declares that no receiver shall be subject to garnishment. This would seem to be sufficient authority to end any further discussion upon this point. Long before this code section was adopted, this court, speaking through Judge Nisbet in the ease of Fields v. Jones, 11 Ga. 413, held that funds or property in the hands of a receiver were virtually in the hands.of the court, and that garnishment could not be permitted to interfere with the administration of anything of any nature of which a court of equity had taken charge. However, since the decision of the Court of Appeals is based upon a construction of § 66 of the United States Judicial Code, it becomes necessary to consider whether the ruling of the Court of Appeals is sound under the statute above referred to, as corrected by the act of August 13, 1888 (known as the judiciary act) and the decisions of the courts of the United States construing 36 Stat. L. 1104, United States
We cannot concur in the construction placed on section 66 by the Court of Appeals. The “ act or transaction of his in carrying on the business connected with such property” can not include the mere holding of funds which may have accrued in the operation of the railroad or by borrowing money and which may be subject to be paid on indebtedness to employees serving under him, because these employees are in effect the servants of the court and in its employ; and of course a court of chancery can not be subject to garnishment, for garnishment is a legal proceeding, and the chancellor can not be required to appear and plead in a court of law. Even if this were not true, under the provisions of § 65 of United States Judicial Code, 36 Stat. L. 1104 (5 Fed. Stat. Ann. 541), all receivers in causes pending in a United States court, who are in possession of any property, shall manage the same according to the requirements of the valid law of the State; and in this State, under the provisions of the Civil Code, § 5485, supra, no receiver is subject to process of garnishment. Furthermore it is our duty to construe § 66 in accordance with the construction given it by the courts of the United States. It is a well-settled rule of jurisprudence which has been followed by this court since its earliest history, as pointed out by Chief Justice Jackson in Clark v. Turner, 73 Ga. 1, to construe all statutes of a sister State, as well as the statutes of the United States, in- accordance
In the first the three cases just cited, in which the court was construing § 66, supra, it was held that: “ Garnishment proceedings are not suits against the receiver for ‘ any act or transaction of his/ within the meaning of the statute, and the appointing court may enjoin the bringing of such proceedings.” Circuit Judge Taft, now Chief Justice of the Supreme Court of the United States, participated in the decision and joined in the opinion. It was further held: “A proceeding for garnishment purposes is an equitable seizure of the funds and property within the custody of the court.” See also ex parte Tyler, 149 U. S. 164, 182 (13 Sup. Ct. 785, 37 L. ed. 689). In United States Trust Co. v. Omaha &c. Ry. Co., 61 Fed. 531, appears this syllabus: “Where a receiver appointed by a Federal court is brought into State courts through garnishment proceedings instituted by creditors of persons employed in the operation and maintenance of the railroad over which the receiver was appointed, the intent of such proceedings being to reach the wages, in the. receiver’s hands, of such employees, and to appropriate such wages to the payment of debts owing to the garnishing creditors, held: (1) That the receiver and said employees being in the service of the Federal court, and the Federal coúrt being the proper forum in which to litigate such matters, such court will, by its order, protect said receiver from the serious inconvenience, expense, and possible hazard of litigating in the State courts the matter involved in such garnishment proceedings, and its employees from being starved out of its service, and the efficiency of the road from being thereby impaired. (2}
In Central Trust Co. v. Wheeling &c. R. Co., supra, the court held that “Beceivers appointed by a court of chancery are not subject to attachment in an action at law, since, in the absence of statutory authority, a court of chancery will not permit interference with its operations by proceedings at law.” And also that “Where a receiver, appointed by a Federal court to operate a railroad, was garnished in an action at law in a State court, such garnishment being a nullity, the receiver incurred no responsibility by ignoring the service and all other subsequent proceedings based thereon.”
Aside from the authorities cited, and considering the long-established practice as to funds in custodia legis, it must be apparent that under general principles the Georgia law as embodied in § 5485 of the Civil Code is sound, just as a consideration of the proviso to § 66 of the United States statute is absolutely necessary. A garnishment, as it has frequently been held, is a separate though an ancillary proceeding and suit. The word is of French derivation, being an Anglieisation of the French word garnir, which means to warn or give notice of. Garnishment is a species of attachment, and it is inconceivable that money or property in custodia legis could be subject to such a process. As has been several times decided, there is a wide difference between
For the reasons stated we are of the opinion that the Court of Appeals erred in setting aside the judgment of the trial judge; and for this- reason its judgment must be
Reversed.