134 Ga. 544 | Ga. | 1910
(After stating the facts.) The question whether the court erred in allowing the amendment to the plaintiff’s proceedings, by which the words, “W. E. Caldwell Co., a corporation,” were inserted in lieu of the words, “W. E. Caldwell & Co.” wherever the latter occurred, is not before the court,’ as no exception to this ruling was taken. For a like -reason, the overruling of the “special appearance” motion to dismiss is not before us. This last-mentioned ruling, of course, naturally followed the other, as after the amendment was allowed the proceedings were clearly against the W. E. Caldwell Co. as a corporation. We must treat the ease, therefore, as if the proceedings were originally against the W. E. Caldwell Co., a foreign corporation. So treating it, did the court err in sustaining the defendant’s oral motion to dismiss the entire proceedings, upon the grounds that the court had acquired no jurisdiction in rem over any property belonging to the defendant, and nothing had occurred by which the court had acquired jurisdiction to render a personal or general judgment against the defendant? The judgment of the court was partly right and partly wrong. As to the attachment and garnishment proceeding, it was right; as to the declaration in attachment, it was wrong. The untraversed answer of the garnishee showed that at the time of the service of the summons of garnishment he, as an individual, owed nothing to the defendant in attachment, the W. E. Caldwell Co., a non-resident corporation, and had nothing in his hands belonging to that corporation, and had not since such service become indebted to thát company or received any of its property or effects; but that as trustee in bankruptcy of the estate of T. A. Bailey he had in his hands five thousand dollars, the net proceeds of certain lumber, which had come into his possession as such trustee and which he
It is contended, however, in the present case that inasmuch as the order of the referee directed the trustee to pay over the net proceeds of the sale to the W. E. Caldwell Company, it was thereby segregated and became a direct indebtedness or amount due to that company, and'hence was subject to garnishment-by its creditor. If a garnishment is-served, a judgment rendered upon it against the garnishee must be upon- it either against .him in his individual capacity or in his official capacity, either against his personal funds, or against the funds in his hands as trustee. This was not a transaction between James-individually and the Caldwell Company, nor an individual indebtedness by him. to that company, even though the company might have a right to proceed against-him if he failed to pay it in accordance with the order, of- the court; for such right would arise out of the fact that he had not carried out such order. The garnishment recognizes the action of the court ordering the sale and the payment of the net proceeds as a valid order, and is founded upon it. Without that order there would have been no sale and consequently no proceeds to pay. The garnishment proceeding, therefore, is'necessarily against the trustee in his representative capacity, and is an effort to subject funds which .lie holds in that ca
As the garnishment, in so far as it was directed to and served upon James as trustee in bankruptcy of the estate of Bailey, was without authority of law and void, and in so far as it was directed to and served upon him in his individual capacity it failed to reach and fasten upon any property or asset belonging to the defendant, no lawful levy of the attachment was made; and consequently the court was without jurisdiction of the attachment proceeding, and therefore properly dismissed it.
The error which the court committed was in also dismissing the declaration in attachment. The -Civil Code, § 4575, declares: “When the defendant has given bond and security, as provided by this code, or when he has- appeared and made defense by himself or attorney at law, or when he has been cited to appear, as provided by this code, the judgment rendered against him in such case shall bind‘all his property, and shall have'the same force and effect as
Judgment reversed.